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Kelly v Arriba Soft

Kelly v Arriba Soft Case Background And Documents
Kelly v Arriba Soft was first filed on April 6, 1999. The basic charge was direct copyright infringement for use of images owned by Kelly as part of a multi-million image database created by Arriba Soft, Inc., to support the sale of its proprietary software, Arriba Express, which would be used by buyers to manipulate images found within the database of images at Arriba Vista Image Searcher. Under the guise of the Arriba Vista Image Searcher, a start up image search engine, Arriba Soft offered its users the opportunity to search for images; it would even go out and find desired images if they were not already in its database. The image search results were served up in thumbnail format with a small box beside each thumbnail image which, when checked, would "Download To Arriba Express" the full sized image for the Arriba Express user to manipulate, without permission, for their own purpose, commercial or otherwise. Potential users could also click the thumbnail image which would display the full sized image, framed with advertising and Arriba Soft's Arriba Vista Image Searcher, giving the viewer the impression that the full sized image was housed on the Arriba Soft website.

The Arriba Express and Arriba Vista Image Searcher were described in the Arriba Vista Press Release as "image searching is now seamlessly married to media management." It continues, "The digital images from Arriba Vista can automatically be downloaded into the Arriba Express media management product by clicking a button located on the Arriba Vista search results page. The combination of Arriba Vista and Arriba Express enables users to rapidly capture, view, edit, organize and re-use media files, significantly reducing time and money spent on media creation and management." Arriba Soft announced separately that it anticipated sales of one million units of its Arriba Express at a retail price of $149 each or US$149 million in total in the first year. In fact, Arriba Soft's Michael Lyons produced a "Eye On Business" seven minute infomercial about how Arriba Express could be used to download an "embarrassment of riches" from the Internet, using its WebVac, to satisfy the users needs, all without asking for permission! Click on http://www.batv.com/batv/frmprof.html Follow the index to Arriba Soft Corporation. Requires RealPlayer.

Aware that Arriba Soft's use of his images to sell its Arriba Express software was direct copyright infringement, Kelly sued Arriba Soft [Case SA CV 99-560 GLT (JW)]. In March 2000, Judge Gary Tyler ruled against Kelly, in response to a motion for summary judgement, and found that Arriba Soft's use of thumbnails and full sized images was fair use.

Kelly, with the financial backing of the American Society for Media Photographers and financial support of the Graphic Artists Guild, filed an appeal [00-55521] to the Ninth Circuit Court of Appeals on March 22, 2000 through his Attorney's, Charles Ossola and Jule Sigall, Arnold & Porter, Washington, DC, and Steven L. Krongold, Arter & Hadden, Irvine, California. Kelly's brief brought the issues of the original filing back to the Ninth Circuit Court of Appeals. Arriba Soft and subsequently Ditto.com had made every effort to ignore, to forget or quickly dismiss the issues of "Download To Arriba Express" and the small download buttons beside each thumbnail image which allowed the user to download the full sized image without actually ever visiting the website and to not see the image in its original context, its intended purpose and its copyright management information. They will not be ignored, forgotten or dismissed!

On February 6, 2002, the Ninth Circuit Court of Appeals announced its decision in Kelly v Arriba Soft. In favor of Ditto.com, it did uphold the right of image search engines to display thumbnail copies of images within their search results so long as the website URL was linked from the thumbnail. In favor of Kelly, it found that Arriba Soft's display of the framed, deep linked full sized image, was not fair use. Further, it found that Kelly suffered harm as a result of the Arriba Soft's display of full sized images, deep linked and framed at the Arriba Vista Image Searcher. The Ninth Circuit Court of Appeals remanded the issue back to Judge Taylor for determination of damages. The decision clearly determined that image search engines cannot display full sized images out of context of the website on which they were originally displayed; image search engines can only link from the thumbnail to the website!

On March 23, 2002, Sorceron, the current owner of Arriba Soft, which now is called Ditto.com, had its Attorneys appeal the ruling to the full court for an en banc hearing. The Electronic Frontier Foundation also filed an amicus brief in which it made assertions that linking, the backbone of the Internet, was in jeopardy if the ruling in favor of Kelly was not rolled back. Despite the attempt by the "Digital Freedom Fighters" at the Electronic Frontier Foundation to create mass hysteria with their widespread publicity on the assertion that Kelly would destroy the Internet, this "Parade of Horribles Led by a Strawman" was clearly and definitively refuted by Kelly's brief filed on March 26, 2002. The American Society of Media Photographers, joined by The Author's Guild, North American Nature Photographers Association, National Music Publishers' Association and the Harry Fox Agency, also filed an Amici Curiae brief.

The next action in the case will come when the Ninth Circuit Court of Appeals rules on the appeal by Sorceron/Ditto.com for an en banc hearing.

On October 10, 2002, the Ninth Circuit Court of Appeals requested Kelly to provide additional information about his presentation of derivative rights at the District Court level. Kelly provided documentation that the record was fully developed in Kelly's Supplemental Brief 10312002. Arriba Soft Corporation, Inc., now known as Ditto.com, responded in Arriba Soft's Supplemental Brief 11252002 with an attempt to completely recast the case as an issue of thumbnails and an out of place attempt to recast its Arriba Vista Image Searcher as an Information Location Tool (17 U.S.C. §512(d). Kelly, in his Kelly's Response To Arriba Soft on December 12, 2002, noted that Arriba Soft's Arriba Vista Image Searcher was not an information location tool but, along with its Arriba Express system, was actually a stock photo service. It was the infringer and was not merely pointing to a potentially infringing link, the true test of an "information location tool"! In the midst of this, Google.com (in the form of Jennifer M. Urban and Deirdre K. Mulligan of the Samuelson Law, Technology and Public Policy Clinic, UC at Berkeley School of Law (Boalt Hall), mistakenly believed that it could file an Amicus Curiae but did offer some rather novel points. Its brief continued the mistaken train of thought of the Electronic Frontier Foundation and Chilling Effects that website owners must use robots.txt to protect their copyright. Nowhere is this written in copyright law!

For What It Is Worth, we received an E-Mail, ostensibly from Stephen Schmitt, You Are An Idiot. There is apparently a Stephen Schmitt, Vice President Engineering, at Ditto.com. Is this an authorized comment on Kelly v Arriba Soft?

On Monday, July 7, 2003, the Ninth Circuit Court of Appeals issued its Order and Opinion" in the matter Kelly v Arriba Soft. The opinion vacated its previous decision of February 6, 2002, and remanded the issue of Kelly's claim of infringement for framing of full sized images to Judge Taylor for hearings. Kelly will proceed with the case on this issue at the earliest opportunity and seek damages against Ditto.com's use of his full sized images since there is significant case law favorable to his position in the matter.

April 19, 2004. After attempts to settle the matter of damages, in light of the favorable ruling by the Ninth Circuit Court of Appeals, Kelly returned to District Court and, on March 18, 2004, successfully obtained a Default Judgement against Arriba Soft Corporation AND its successor company Ditto.com which continues to operate at http://www.ditto.com and remains at its longtime headquarters in Napierville.

"Judgement shall be entered in favor of Plaintiff LESLIE A. KELLY, and individual and d/b/a LES KELLY PUBLICATIONS, LES KELLY ENTERPRISES, and SHOW ME THE GOLD and against Defendant ARRIBA SOFT CORPORATION, aka DITTO.COM in the sum of $345,000.00, plus reasonable attorney's fees in the sum of $6,068.20. s/Gary L. Taylor, UNITED STATES DISTRICT COURT JUDGE" March 18, 2004


Internet Press Coverage

Letters To The Editor
FT.com
Castle House
37-45 Paul Street
London EC2A 4LS
England

Ms. Patti Waldmeir
Columnist
Financial Times
Washington, DC

Dear Editors:
Dear Ms. Waldmeir:

On this date I received three e-mails, from very UK young adult polite to improper characterization as "obscenely American", the author of a "potentially dangerous" lawsuit that "could disrupt the entire internet" and one particularly virulent (but somewhat lacking in spelling skills) person who offered "Thanks for helping destroy the Internet, instead of hiring a competant [sic] webmaster" and closed with "Hoping you get an incurable disease." And, "You are a walking contradiction. I find it hilarious that you use links in your site, yet you sue someone for using links in theirs. Way to ruin the internet, jackass." It took only a few minutes to chase down the source of confusion for this set of young people, misled as they were, to your article of April 4, 2002: INSIDE TRACK: A ruling that robs the public domain: A landmark copyright case threatens to render illegal all links on the web .

It became clear as I read through your article that all of their crazy ideas about my lawsuit, and their characterizations of my character, except for the "incurable disease" thing, sprang from your words written so eloquently yet so ignorant of the facts of Kelly v Arriba Soft and the decision of the Judges of the Ninth Circuit Court of Appeals.

I was particularly concerned by the one writer, who attempted to disguise himself through a fake e-mail return (these young folks don't understand that older folks actually understand e-mail protocol, too), that hoped I would get an incurable disease, and saddened that the speller of "competant" might not have learned his English properly. I am proud to be an American but certainly not one who is obscene, a jackass or potentially dangerous to the Internet.

All of this makes me very much concerned about the exposure of the incorrect and inaccurate information contained in the article which you authored wherein you relied upon biased and oft incorrectly referenced legal opinions as served up by the "Digital freedom fighters" of the Electronic Frontier Foundation and their Amici brief before the Ninth Circuit Court of Appeals.

Despite your presentation of the EFF brief among your own comments about copyright, and the comments made by the young folks, my case does not threaten the fabric of the Internet. It does not threaten linking; it addresses only the specific issues of Arriba Soft's Arriba Vista Image Searcher's inline linking and framing, a matter addressed by the Ninth Circuit Court of Appeals and which reflects the correct outcome of the issue at hand. It is your and the EFF's over reaching of interpretation of the decision that is "far reaching", not the Ninth Circuit Court. Fortunately, hundreds of thousands of writers, authors, artists and photographers are praising the decision in support of the rights of intellectual property owners who wish to be able to successfully use the Internet for their own business pursuits.

I invite you to review the facts of my case and my brief , prepared by some of the sharpest legal minds in the business, Charles Ossola and Jule Sigall, Arnold & Porter (based right there in Washington, DC) and Steven L. Krongold, Arter & Hadden, Irvine, California. Hopefully you might find your way to understand the facts of the case rather than falsely credit me for the intended destruction of what Al Gore claims to have invented? Wasn't he in Washington when he made the claim? Maybe the three of us could "do lunch" in Georgetown and sort all of this out if you and Al are available?

Or, if not lunch, perhaps we could read together the copyright notice that appears in your highly acclaimed "ANATOMY OF A MIRACLE: THE END OF APARTHEID AND THE BIRTH OF THE NEW SOUTH AFRICA" (Patti Waldmeir. New York: W. W. Norton, 1997) We could then compare that statement with the statements that appear with my own intellectual properties found in numerous books and on my websites and those of millions of others more copyright owners from around the world. This might prove more interesting than any lunch in Georgetown!

Sincerely yours,

Leslie A. Kelly
Plaintiff, Kelly v Arriba Soft, Inc.
President
Les Kelly Enterprises
NetCopyrightLaw.com

FOR IMMEDIATE RELEASE

Update: Kelly v Arriba Soft

Sorceron (Ditto.com) Requests "En Banc" Hearing; Kelly Responds To Request By Ninth Circuit Court With Message That Decision Clearly Supports Copyright Law, Owners Of Intellectual Property And Allows Search Engines To Link Directly To Websites Just As With Text; Ditto.com Morphs Again As It Seeks Viable Business Model

Huntington Beach, CA. Monday, April 1, 2002. Leslie A. Kelly, Plaintiff, Kelly v Arriba Soft, Inc., 00-55521, today released the text of his response to the Sorcercon (Ditto.com, formerly Arriba Soft, Inc.) appeal to the Ninth Circuit Court of Appeals for an "en banc" hearing to the decision released on February 6, 2002, by Judges Betty B. Fletcher, Thomas G. Nelson and Marsha S. Berzon.

Kelly's Attorneys in the appeal, Charles D. Ossola and Jule L. Sigall, ARNOLD & PORTER, Washington, DC, and Steven L. Krongold, ARTER & HADDEN LLP, Irvine, California, responded on March 26, 2002. They were supported by an Amici Curiae brief filed by Victor S. Perlman, American Society of Media Photographers, Inc., The Authors Guild, Inc., North American Nature Photography Association, National Music Publishers' Association and the Harry Fox Agency.

According to Kelly, "What began as a simple case of direct copyright infringement by a rogue business operation, Arriba Soft's Arriba Vista Image Searcher, in early 1999 has evolved into an important legal decision that clears the way for use of images, and text, on the Net by photographers, artists, writers, et al, without fear that they can be legally ripped off by image search engines or others. It also clearly establishes that copyright law does apply to intellectual property on the Internet. It establishes important case law for use of thumbnails, for linking, inline linking and framing. The case began when Steven L. Krongold filed on my behalf on April 6, 1999, in the District Court in Santa Ana, California.

"In clear language, supported by case law, Ossola, Sigall, Krongold and Amici Curiae, fully dispel the flawed notions raised by Defendant Ditto.com that the Ninth Circuit Court of Appeals' ruling erred in its decision that Arriba Soft's Arriba Vista Image Searcher display of full sized images was copyright infringement. My legal team has also clearly established that the Sony case fully supports Plaintiff Kelly! Ditto.com has argued numerous times that there has never been any proof that Kelly's images were displayed, despite the fact that Kelly has provided copies of images, and even Ditto.com has attached a copy provided by Kelly of his own image in display as part of their brief requesting "en banc" hearing. Of course, there is no legal requirement for Kelly to prove that his images were actually displayed, reaffirmed by "Nimmer on Copyright" (Melville B. Nimmer & David Nimmer, 1999). However, for the first time, publicly, my Attorneys have pointed out that even if it were required, Arriba Soft has acknowledged, 'When plaintiff's images were removed from the database, most records regarding the images were inadvertently and permanently deleted as well.'

"No wonder Ditto.com claims that I cannot prove that anyone accessed my images. They destroyed their own records that show their display of my images.

"My Attorneys also successfully disputed the flawed notions raised by Internet Giant Google.com and the Electronic Frontier Foundation that the Ninth's decision jeopardized all linking. The decision does not do this at all. I am pleased to announce that a pdf copy of my brief is now available at my website NetCopyrightLaw.com http://netcopyrightlaw.com/pdf/kellybrief03262002.pdf. The ASMP et al brief can be located at http://netcopyrightlaw.com/pdf/ASMPbrief03262002.pdf.

"I am again grateful to my fellow photographers, artists and members of the various organizations mentioned above, particularly the American Society of Media Photographers, and the Graphic Artists Guild, for their financial and legal support in Kelly v Arriba Soft!

"As a result of my review, independent of the decision by the Ninth Circuit Court of Appeals, of the major image search engines (Google, PicSearch, Alta Vista and Lycos (FAST), it appears that Google may be most at risk based on the decision by the Ninth Circuit Court of Appeals in the manner in which it displays images. Google offers a split screen wherein the 'scaled down' image, which in the case of smaller images may actually be full size, appears above the actual web page on which the image appears. Google does not, however, offer advertising within the split screen.

"PicSearch and Alta Vista offer split screens with the thumbnail displayed again at the top of the page with the web page below. PicSearch does not yet offer advertising at its website today. Alta Vista does not offer advertising with the second display of the thumbnail.

"Lycos has two displays of the thumbnail before arriving at the full page of the website. Advertising appears with each thumbnail display.

"As clearly demonstrated by Ossola, Sigall and Krongold in the Kelly brief, Arriba Soft and Ditto.com clearly controlled how they chose to display thumbnail and full size images. So, too, this follows that it can be shown that each of the major search engines have made a conscientious decision of how to display images. The question, then, follows: Do the current displays by image search engines comply with the decision in Kelly v Arriba Soft? Why is a split screen necessary? Why is a split screen not used for links to text but is used for images?

"It is curious to me," notes Kelly, "why a search engine would insist on adding additional display of the images, thumbnail or 'scaled down', stripped from their original context and without identifying text, inline linked (just the individual .jpg or .gif, etc), but they do not do the same for text. Do they do this so that they can claim extra hits so that they can increase advertising fees? Is there a useful 'fair use' argument here?

"It is important, too, to note that the Ninth Circuit Court of Appeals does not touch on the subject of robots.txt. This, despite the belief of many 'techies', is not a part of the copyright law. The argument of many, to include Dr. Henry Gladney, IBM-Almaden, is not supported by case law nor the statutes themselves.

"As for Ditto.com itself, now owned by Sorceron, Inc., it has again morped into an enterprise with a new company name, TLS Technologies, LLC, and new look as it moves into yet another business model as it seemingly attempts to find its way as a viable image search engine. It appears to be in compliance with the Ninth Circuit Court of Appeals with respect to its use of thumbnails and direct links to website. This change, that began about a week prior to the February 6, 2002, announcement by the Ninth Circuit Court of Appeals, stands in contrast to the major search engines with image searches."

The Sorceron (Ditto.com) brief can be accessed via a link at http://perkinscoie.com/webrelease/bayarea/jennison.htm

The Electronic Frontier Foundation brief can be accessed via a link at http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20020227_eff_pr.html

There is no known Net link to the Google brief.

////

FOR IMMEDIATE RELEASE

Contact:
Leslie A. Kelly (714) 846-0437 leskelly@concentric.net
Charles Ossola, Arnold & Porter, Washington DC (202) 942-5000
Steven Krongold, Arter & Hadden, Irvine, California (949) 252-7500
Vic Perlman, American Society of Media Photographers, Inc., Philadelphia (215) 451-2767
Steven Schubert, Executive Director, Graphic Artists Guild, New York, NY (212) 791-3400

Huntington Beach, CA. February 6, 2002 - Leslie A. Kelly, Plaintiff, Kelly v Arriba Soft, Inc, announced today that the Ninth Circuit Court of Appeals has ruled in his favor for copyright infringement and remanded the case back to the US District Court, Santa Ana, California, for determination of damages.

"I am quite pleased to learn that my original case filed in April 1999 against Arriba Soft has come down in my favor. The Ninth Circuit Court of Appeals has determined the case as it was filed, a simple case of vicarious copyright infringement, by Arriba Soft, Inc., whose true use was disguised as an "image search engine". I was not surprised by the wisdom of the Circuit Judges who reached the decision. I am quite pleased to see that copyright owners worldwide now have case law to enhance their protection from rogue start up image search engines, such as Arriba Soft's Arriba Vista Image Searcher and Diggit! Image Search, and other infringers that seek to make "easy millions" using intellectual property without license.

"I am also pleased to see the decision that image search engines can use thumbnail images under "fair use" so long as they link directly to the webpage to show the image in its original context as it was intended by the website owner! This puts them on the same par as text engines and will enhance their usefulness for all concerned. To isolate images and present them outside the context of the original purpose of the website owner is now very clearly illegal!

"It should be carefully noted that this decision affirms that existing US Copyright Law protects images located on the Internet. Kelly v Arriba Soft will now take its place with other Internet copyright law decisions such as recent important cases won against Napster (music) and Tasini v NY Times (republication of news stories) and Jerry Greenberg v National Geographic (reuse of images on CD-ROM).

"I wish to thank my Attorneys, Charles Ossola, Arnold & Porter, Washington, DC, who handled the appeal process before the Ninth Circuit Court of Appeals, Jule Sigall, Arnold & Porter, who assisted with the case, and to Steven L. Krongold, Arter & Hadden, Irvine, CA, who prosecuted the case before the US District Court in Santa Ana. I also wish to acknowledge the strong support of creators of intellectual property worldwide who have been supportive of my actions. The list includes Vic Perlman, American Society of Media Photographers, Inc., Philadelphia, Steven Schubert, Graphic Artists Guild, New York, The Author’s Guild, Inc, North American Nature Photography Association, National Music Publishers' Association, The Harry Fox Agency, Inc., American Institute of Graphic Arts, American Society of Journalists and Authors, Visual Artists and Galleries Association, Inc., The National Writers Union, The Picture Agency Council of America, The Association of Medical Illustrators, and The Society of Illustrators."

////

Anyone wishing further information or to interview Leslie A. Kelly may contact him by e-mail leskelly@concentric.net.

For information about the Hearing of Kelly v Arriba Soft held on September 10, 2001, by the Ninth Circuit Court of Appeals, click here (Kelly v Arriba Soft , Decebmer 15, 1999, Case No. SACV 99-560 GLT ANx) Read Judge Taylor's Complete Decision.



FOR IMMEDIATE RELEASE - Kelly v Arriba Soft (now Ditto.com but owned by Sorceron.com) Heard On September 10, 2001, Pasadena, California.

Huntington Beach, California. Tuesday, September 11, 2001. Charles D. Ossola, a partner at Arnold & Porter in Washington, D.C. and the head of that firm's Intellectual Property & Technology Practice Group and Steven L. Krongold, a partner with Arter & Hadden, Irvine, California, and Leslie A. Kelly's Attorney, appeared before the Ninth Circuit of Appeals on September 10, 2001, in Pasadena, California. In post hearing discussions, both felt that the hearing went well for Kelly. The Judges asked very pertinent questions about the issue, including why hadn't the case been settled?

It is anticipated that a decision will be handed down within six to nine months. Kelly anticipates that the case will be decided in his favor with a potentially significant award for damages as the result of vicarious infringement by Ditto.com. And, of course, there is the potential that those victims of infringement by the Arriba Vista Image Searcher will come forward individually or in a class action to seek their own damage awards from Ditto.com (now owned by Sorceron.com).

A decision in favor of Kelly and copyright owners everywhere will, of course, raise issues for other search engines which feature image searches, i.e., AltaVista, Lycos, FAST, Google, Yahoo, Ditto.com and PicSearch.

An excellent summary of the issues before the Ninth Circuit Court, Is Theft in the Eye of the Beholder?, was written by Times writer Lisa Guernsey and appeared in the September 6, 2001, issue of the New York Times.



FOR IMMEDIATE RELEASE - Kelly v Arriba Soft (now Ditto.com) To Be Heard September 10, 2001, Pasadena, California

Huntington Beach, California. Monday, July 9, 2001. Fresh from its recent decision against Napster, the Ninth Circuit Court of Appeals will hear oral arguments in Kelly v Arriba Soft, Inc., on Monday, September 10, 2001, according to Leslie A. Kelly, Photographer. Kelly notes that "With the recent Supreme Court victory in Tasini v New York Times in digital rights to text, the demise of the original Napster, makeovers at MP3 and Scour, we are quite hopeful that the Ninth Circuit Court of Appeals will roll back the District Court decision in my case about the use of digital images by image search engines under the guise of 'fair use'. This would close the gap that presently exists regarding certain rights to use of images on the Net."

According to Kelly, "It has now been more than two years since I filed against Arriba Soft., Inc., in the first copyright infringement case against a so-called image search engine. Since then, that search engine, http://www.arribavista.com, has been changed to http://www.ditto.com, and gone through many face lifts and even more twists and turns in an effort to create a financially viable medium for its investors. Now, despite burning through more than $31 million of venture capital, the company created by Michael J. Lyons, Elmhurst, Illinois, has apparently failed, all of its employees have been laid off and its offices in Naperville, Illinois, Burlingame, California, and New York are closed.

"What began in 1998 as a company built upon the use of images owned by everyone but itself and boasting that it would generate first year sales of more than $149 million of its proprietary software with full access to its database "mined" from the Net, Ditto.com is apparently now just a shell of its former self.

"According to an interview in the October 1997 edition of Chicago Software Newspaper, Michael J. Lyons, Founder & Chairman of the Board, stated, in part, about his four "successful" career startup operations: 'I’m as pumped up today as I was when I started my first company because the Net has created a whole new world and the cowboys are back. It is the entrepreneurs who dominate that world right now.' Less than four years later, ousted out of his corporate digs and operating from Elmhurst, Illinois, as a one-man business, Lyons is reportedly attempting to sell his inventory of images harvested from the Net and housed at http://www.ditto.com."

Chicago Sun-Times columnist Darcy Evon, in a June 4, 2001, story, "Cash-rich Ditto.com Returns To Home Turf", quotes Lyons as saying, "'Cash isn't king anymore. You have to get your company to break-even so that you can have long-term staying power or sell it.'" See related article at http://www.i-street.com/newsarchive/yr2001/mn06/06ditto.asp.

Comments Kelly, "Even though Lyons says that he has more than $500,000 left in his bank account, his story is just another case of dot.com failure. Any business built upon the theft of intellectual property of others is destined to fail. ArribaVista.com and Ditto.com are perfect examples of what happens when an entrepreneur lets their ego get in the way of common sense, and the law, and then tries to ride like a 'cowboy' over the rights of others!"

Kelly vs Arriba Soft (ditto.com) net copyright law case appeal reply brief filed by Arnold & Porter at Ninth Circuit Court on October 5, 2000. ditto.com was joined by Alta Vista, Google and Yahoo in a badly flawed Amici Curiae brief that claimed Kelly was attempting to shut down the Internet rather than seek damages for infringement by Arriba Soft's Arriba Vista Image Searcher for its illegal use of his images. Kelly notes that thousands of other artists and photographers have joined with him, led by the American Society of Media Photographers, Inc., and Graphic Artists Guild, in support of his infringement claim. Read entire brief here.

Kelly vs Arriba Soft (ditto.com) net copyright law case appeal filed by Arnold & Porter at Ninth Circuit Court on July 17, 2000, in Leslie A. Kelly’s fight to appeal flawed District Court decision by Judge Gary L. Taylor.
Read entire brief here.

MP3 Judge Sends Clear Message To Net Cowboys!
"Some of the evidence in this case strongly suggests that some companies operating in the area of the Internet may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law. They need to understand that the law's domain knows no such limits."

U.S. District Judge Jed S. Rakoff, Southern District of New York, September 6, 2000, Ruling on willful infringement in MP3 case.

Amici curiae brief filed by American Society of Media Photographers, Inc., The Author’s Guild, Inc, North American Nature Photography Association, National Music Publishers' Association and The Harry Fox Agency, Inc. on behalf of Leslie A. Kelly, on July 24, 2000.
Read entire brief here.

[Please note that the ASMP, et al, amici curiae brief reminds the Court that Arriba Soft Inc (now ditto.com) CEO Michael J. Lyons (now Michael J. Lyons, Founder & Chairman of the Board, ditto.com), in an interview in the October 1997 edition of Chicago Software Newspaper, stated, in part, about his four successful career startup operations: "I’m as pumped up today as I was when I started my first company because the Net has created a whole new world and the cowboys are back. It is the entrepreneurs who dominate that world right now." (Italicized emphasis provided by Kelly) And, given the number of lawsuits involving copyright infringement involving Arriba Soft, Inc. (now ditto.com), Scour.Net, MP3.com and Napster, the entrepreneurs are learning that being a cowboy with respect to unlicensed use of images, music and movies may not be so much fun after all!]

Amici curiae brief filed by Graphic Artists Guild, American Institute of Graphic Arts, American Society of Journalists and Authors, Visual Artists and Galleries Association, Inc., The National Writers Union, The Picture Agency Council of America, The Association of Medical Illustrators, and The Society of Illustrators on behalf of Leslie A. Kelly, on July 24, 2000. Read entire brief here.

If you need to download Adobe Acrobat to read these files, Click here to download.

·Amicus Curiae Brief Filed By Graphic Artists Guild In Support Of Intellectual Property Appeal By Photographer Leslie Kelly

·Leslie A. Kelly writes to iMP concerning Kelly v. Arriba Soft, Inc.
We have been contacted by one of the principals in the case Kelly v. Arriba Soft, Inc., concerning Henry Gladney's story, which discussed the case. Kelly v Arriba Soft, Inc. involves alleged copyright infringement as the result of unauthorized use of images as part of a new image search engine which aggregated the database to market its proprietary software. The Judge did determine prima facie infringement but balanced that use with "fair use" and found in favor of the defendant. The case is now in appeal. Arnold & Porter (Washington, D.C.), along with support from the American Society of Media Photographers, Inc., and Graphic Artists Guild, and eleven additional amici, is handling Kelly's appeal which will come before the Ninth Circuit Court of Appeals in 2001.

Recent decisions concerning Napster and MP3 point to the timeliness of this issue; we present the letter in full and encourage readers to review the original story as well as the references given here to the ongoing case.

Dear iMP Editor:

While doing some research on the Web, I discovered the article authored by Mr. Henry Gladney, "Are Intellectual Property Rights A Digital Dilemma?", (iMP, February 2000)at http://www.cisp.org/imp/february_2000/02_00gladney.htm.

I was a bit surprised to see his analysis of measures that he speculated that I did not consider and the assumptions made in his otherwise apparently erudite article about protection of digital media assets. His failure to contact me or my Attorney regarding the actual facts in the case has, unfortunately, led to erroneous speculation on his part.

From my reading of the article, I can infer only that his apparent knowledge comes from the reading of the published decision in the case Kelly v Arriba Soft that is now on appeal.

Unfortunately, Mr. Gladney’s paper with its incorrect assumptions has likely gained widespread circulation as an accurate and correct statement of facts in the matter; perhaps to include the erroneous presumptions that may be restated in time as facts indeed by readers. Numerous intellectual property defense attorneys may attempt to use his suggested defense in the matter in which he used my case to graphically suggest, one sided and completely without foundation, that my purported lack of knowledge and failure of due diligence shines through to allow him to richly illustrate his points.

"Serendipity." "Probably." These are unlikely research terms to establish facts upon which to build a foundation for a legal defense against charges of copyright infringement. Each of the elements mentioned in his article were considered and discussed with Internet Service Providers and Web developers. My Web sites were well protected by sixth and seventh options that he did not consider. One was a mechanism that apparently remained hidden from view, even from his (or his staff’s) repeated visits to my Web sites. I noticed that Mr. Gladney or someone from IBM closely monitored my Web sites after I filed my lawsuit. In fact, I even established a hard copy file to document the frequent visits. almaden.ibm.com appears many times [wfp2.almaden.ibm.com 198.4.83.49] in the stats files for http://goldrush1849.com. It was this Media House system that led me to the infringer who used my images and the subsequent filing of my copyright infringement lawsuit.

The seventh element, copyright law itself, is old fashioned but certainly not out of style. The Web sites were, and still are, clearly marked with appropriate copyright statements. The images themselves are registered in accordance with copyright law.

The infringer, in this case, was a company that operated its Web crawler without regard to robots.txt in its effort to build a multi-million image database to support its marketing of a software program.

Some of the measures that Mr. Gladney suggested cannot protect an image from a rogue Web crawler, one which is not programmed to follow robots exclusion protocol; digital marking and overwriting do not stop the infringer, they do however make it easier to identify the image when the infringer is found!

In my case, plaintiff did exercise due diligence with full review of existing technologies. In our opinion (to include numerous trade groups who have joined in support), the District Court Judge did not apply copyright law correctly. In my opinion, resorting to speculation to make points clearly illustrates a lack of due diligence. Mr. Gladney’s points, by the way, are not supported by reference to pertinent sections of copyright law to establish credibility in their potential application. Lawyers thrive on references.

I invite your attention to a statement made September 6, 2000, by U.S. District Judge Jed S. Rakoff, Southern District of New York, September, ruling on willful infringement in the MP3 case:

"Some of the evidence in this case strongly suggests that some companies operating in the area of the Internet may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law. They need to understand that the law's domain knows no such limits."

Copyright law does not require that copyright owners utilize the technological measures proposed by Mr. Gladney. Just because the Internet is an easy medium in which to copy material posted therein, as Mr. Gladney noted, copyright law still protects those who do so. New technology available for those who wish to use the Internet is good and will improve communications and data exchange well into the Millennium. However good it may be, its developers and entrepreneurs of new technology cannot attempt to utilize the copyrighted works of others for profit and then seek to blame the copyright owners because they did not utilize any or all of these measures that he has proposed.

Interested readers of iMP may follow Kelly v Arriba Soft, Inc., to its conclusion at:

http://netcopyrightlaw.com

With best regards,

Leslie A. Kelly
Les Kelly Publications
Huntington Beach, California
leskelly@deltanet.com

[Mr. Kelly is a 1970 MBA Graduate of McNeese State University, Lake Charles, Louisiana, and is the photographer and/or author of nine photo books on the subjects of Laura Ingalls Wilder, the Amish and the California Gold Rush. He is a member of American Society of Media Photographers, Inc. and the Graphic Artists Guild. His travel writing and/or photography have been published in more than 200 magazines and books since 1973. Mr. Kelly operates seven Web sites in support of his business activities.]

Released: September 22, 2000
iMP Magazine,
http://www.cisp.org/imp/september_2000/09_00pages-insight.htm

© Copyright 2000. Leslie A. Kelly. All rights reserved.

·Reader's Reaction to "This Just Pisses Me Off"

·This Really Pisses Me Off by Julia Ptasznik of Visual Arts Trends is an excellent summary of the actual lawsuit filed in April 1999 which sums up the case as it really was before Judge Taylor ignored them!

·Information superHIGHWAY ROBBERY is presented by Icograda, The international Council of Graphic Design Associations which is the professional world body for graphic design and visual communications.

·How should the government protect copyrights in light of new technology? Copyright Law Essential To Well-Being of Internet by Rep. Howard Berman

·Arnold & Porter to Handle Appeal of Net Copyright Law Case

·Search Engine Disputes

·New York Times, April 27, 2000, Circuits: NEWS WATCH; Judge Backs Search Engine's Use of Copyrighted Images
(Requires FREE Registration for access to New York Times and payment of $2.50 to read full article).

Copyright Protection on the Internet

By: Steven L. Krongold

The Internet has spawned a variety of novel legal issues. One issue that has gained national attention is the extent to which websites can offer "free" access to a third party’s intellectual property whether by converting the protected work into a digital format (e.g. MP3) or by using an automated web crawler to search a site and create thumbnail versions of the images for users to download at will. In fact, the practice of crawling another’s site to extract even non-copyrightable material may be illegal under a recent district court decision.

The MP3 Lawsuit: Digital Versions of Music CDs

MP3 technology allows for the fast and efficient conversion of compact disc recordings into compressed digital files that can be downloaded over the Internet; the sound quality is virtually identical to the original CD. MP3 launched its "my.mp3.com" website by copying tens of thousands of original CD recordings onto its computer servers which enabled users to download and replay the recordings from any computer with an Internet connection. Users are not charged a fee, but must prove they own the CD version of the recording by inserting the disc in the CD-Rom drive for a few seconds or purchasing the CD from an online retailer.

The Recording Industry Association of America (RIAA), on behalf of various records companies, sued for copyright infringement. The court held that a prima facie case of infringement had been shown. The court then analyzed whether the copying was protected under the "fair use" doctrine. See 17 U.S.C. §107. In determining fair use under the Copyright Act, the court must consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purpose; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the work as a whole; (4) the effect on the potential market for or value of the copyrighted work.

The first factor involves not only a consideration of whether the use is commercial but also whether the use is "transformative," that is, whether it serves to create a new form of expression, infusing the original work with new meaning or understanding. The District Court in New York held that MP3 simply retransmitted unauthorized copies of the music in a different format and thus added no "new aesthetics, new insights and understandings" to the original music. Moreover, MP3 attracts revenue from advertising and other sources even though it does not charge users a fee; thus, MP3 engaged in commercial exploitation of protected works.

The other fair use factors weighed in favor of plaintiffs. The Court rejected MP3's argument that it provides a useful service to consumers: "Stripped to its essence, defendant’s ‘consumer protection’ argument amounts to nothing more than a bald claim that defendant should be able to misappropriate plaintiffs’ property simply because there is a consumer demand for it. This hardly appeals to the conscience of equity."

The Arriba Soft Lawsuit: Thumbnails of Photographs

Images rather than music are at issue in another recent case testing the boundaries of the "fair use" doctrine as it applies to websites and the Internet. In Kelly, the plaintiff is a photographer who uses his copyrighted works to promote package tours (http://www.showmethegold.com) and books (http://www.goldrush1849.com and http://www.liwms.com). The defendant operates a visual search engine/stock photography service which enables users to locate and download copyrighted images on the Internet (http://www.arribavista.com and http://www.ditto.com). The defendant also sold media management software called "Arriba Express" that contained a "webvac" function which allowed users to import (or "vacuum") multimedia files from other Web sites directly into Arriba Express.

Like MP3, Arriba copied protected works onto its servers without permission and without paying compensation to the owners. Users are able to view and download thumbnail versions of the images for free; Arriba earns its revenue from advertising, licensing, and other sources. In the initial version of the website, when users clicked on the thumbnail, a window displayed the full-size version of the image, its dimensions, and the originating address of the image file. Arriba compiled its database of over two million images by crawling third-party sites with a software robot or "spider" and vacuuming those images into its servers. Some of these Websites were accessed despite restrictions such as "robots.txt" which tells spiders to stay out.

In Kelly’s suit for copyright infringement, the District Court in California ruled that "fair use" protected the defendant’s conduct, in part, "because of the established importance of search engines and the ‘transformative’ nature of using reduced versions of images to organize and provide access to them." The Court was persuaded that defendant’s service provided a better way to find images on the Internet. The Court was impressed with the new technology of the search engine, broadly interpreting the concept of "transformative" use even though other factors weighed against fair use (e.g., the images were at the core of artistic expression, entire images were copied in order to create the thumbnails, and the images were used for a commercial purpose).

Contrast the California Court’s liberal bent on "transformative" use with the New York Court. In one case, the court found that thumbnails (which are merely smaller versions of the original) constituted a transformative use of the copyrighted work in the context of a search/index service. In the other, the court held that MP3 files (which are digital files of music) did not constitute a transformative use of the original CD recording in connection with a site that performed a search/index function as well.

In Kelly, the Court downplayed the significance of Ditto’s webcrawler which failed to honor restrictions placed on other websites. The integrity of the defendant’s webcrawler became a major issue in another recent case which gained national attention.

The eBay Lawsuit: Webcrawling Constitutes Trespassing

The legality of spidering or crawling a competitor’s website is at issue in a case pitting online auction giant eBay against Bidder’s Edge, an upstart auction aggregator–a search engine that enables users to find items being auctioned at several sites simultaneously. To compile its auction listing, Bidder’s Edge uses a spider to extract information which in itself is not protected by copyright. However, eBay sued for trespass of its computer system. eBay also claimed unfair competition in that Bidder’s Edge gave incomplete or misleading information, and was unfairly profiting from eBay’s business.

On May 24, the U.S. District Court granted a preliminary injunction barring Bidder’s Edge from using its spiders to crawl eBay’s site. The Court based its ruling on the trespass theory, finding that eBay’s servers were personal property and that Bidder’s Edge used a portion of those servers without permission. The Court was persuaded that searches conducted by Bidder’s Edge slowed, or had the potential to slow, eBay’s service to its subscribers.

Trespass was a novel legal theory since eBay could not demonstrate copyright protection for the factual information on its auction site. In an earlier high-profile case, the District Court had rejected the notion that copyright infringement occurs when one extracts factual data carried on publicly available web pages and uses those facts if the expression and method of presentation is not copied.

The Napster Lawsuit: The Napster Is Not An ISP/OSP

Closely related to the MP3 litigation is the Napster lawsuit. Napster is small Internet start-up based in San Mateo, California, which makes its proprietary MusicShare software freely available to Internet users. Using the software, "napsters" can search for, play or download MP3 files on another user’s hard drive.

RIAA sued Napster for vicarious and contributory copyright infringement on the theory . The Court held that Napster did not act as an online service provider such that the "safe harbor" provisions of the Digital Millennium Copyright Act, 17 U.S.C. §512(a) limited its exposure to monetary damages. The Court noted that Napster also acts like a search engine or free information location tool through which users can find "millions of songs" online.

Conclusion

Each of these cases has wide-ranging implications for the Internet. On one side are those who believe the Internet was meant to be a seamless web of information, free and open to all users. On the other side are those who believe the Internet can and should become a profitable extension of normal channels of commerce. In order to flourish in this environment, the courts must protect the intellectual property rights of those who provide the content on the Internet, whether that content consists of music, video, photographs or film.

[Note: Mr. Krongold practices intellectual property litigation in Costa Mesa, California. Mr. Krongold was lead attorney in the Kelly v. Arriba Soft litigation. An appeal to the Ninth Circuit Court of Appeals is now pending.]



· The following article appeared with a color photograph of Leslie A. Kelly and Attorney Steven L. Krongold on the front page of the Monday, February 21, 2000, Business Section of the Los Angeles Times. While the article did provide several perspectives, it did not include that salient facts that brought Kelly to file his lawsuit in 1999. Arriba Soft's Arriba Vista Image Searcher, not ditto.com, was the company sued for placing his images in a search results page -- no copyright statement and no indication of ownership -- with a box adjacent to each image that the viewer could use to "Download to Arriba Express." Arriba Express was a proprietary software program that allowed users to download images from the Internet for their own use. Arriba Soft boasted in press statements that they planned to sell one million copies worth $149 million of Arriba Express packaged "seamlessly" with the use of the images found in their image searcher.

http://www.latimes.com/business/cutting/20000221/t000016821.html

· On February 23, 2000, picking up on the February 21, 2000, story in the Los Angeles Times, Dana Blankendorn, in a column at ClickZ, took a shot at Kelly vs Arriba Soft for attempting to shut down the Internet. Even if Al Gore did invent the Internet, Kelly vs Arriba Soft is not about shutting down the Net! Please see Mr. Blankenhorn's article, The Dumbest Lawsuit In Web History.

The following open letter was sent to Mr. Blankendorn and posted in the ClickZ Forum newsletter:

Dana, thanks for giving me the opportunity to respond to your posting, The Dumbest Lawsuit in Web History, at http://gt.clickz.com/cgi-bin/gt/cz/cz.html?user=ffffffffffff&article=1361. It would have been good if you had contacted me and talked with me about the lawsuit prior to writing your article. Since you did not do so, let me explain why the lawsuit is really not the "dumbest lawsuit in web history!"

I am certain that some people will consider my lawsuit filed on April 6, 1999, "dumb" as there are many diverse opinions and thoughts stated on the Internet. First of all, the Los Angeles Times' article, as written (or perhaps edited down by an editor to fit space), does lead anyone who reads it to believe that the focus of the lawsuit is to shut down search engines.

Not so.

If you base your entire knowledge about the lawsuit to the article that appeared in the Los Angeles Times http://www.latimes.com/business/cutting/20000221/t000016821.html, you and your readers could easily come to the same conclusion. The LA Times article did not tell the entire story, only half of it. My lawsuit was not about ditto.com. My lawsuit does not seek to close down the Internet (even if Al Gore claims he invented it!). My lawsuit does not seek to shut down legitimate search engines.

My lawsuit was filed against Arriba Soft, Inc., which operated the Arriba Soft Image Searcher at http://arribavista.com from 1998 until mid July 1999. They took some 2.5 to 3.0 million images from websites around the world without permission and without compensation for a special marketing purpose, to market their proprietary software called "Arriba Express." I did not file a lawsuit against the Internet or against search engines.

My lawsuit was filed against Arriba Soft, Inc., and not ditto.com, because they used my images to support a marketing program for their software, Arriba Express. They posted all of the images, mine included, in a database which was designed to support the marketing of Arriba Express. They projected sales of 1,000,000 units at $149 each for 1999 alone. They posted my images with a clickable box that allowed the downloading of my images into their software which could then be manipulated for the users purposes according to Arriba Soft's hype on their image searcher.

It should be noted that the Arriba Soft "DittoSpyder" did NOT honor robots text based on a large number of complaints posted on various chat groups. I could have built a robots text file to protect my website from all honest robots but I did not want then, or now, to hide my websites. I do not market my images on the Internet; I use my images to market my products and services on the Net. Their inclusion in the Arriba Vista Image Searcher, posted alone, deep linked to the individual jpg, without accompanying text to identify their purpose did nothing more than serve them up as a free download into Arriba Express, not benefit me or those who would seek information about the gold rush. My California's Gold Rush Country website (http://goldrush1849.com) offers a tremendous amount of useful information to school children and others with a strong interest in the gold rush and so to post just an image, without the accompanying information, served only to enrich Arriba Soft.

Arriba Soft changed its name shortly after I filed my lawsuit to ditto.com and changed much of the way that it operates about four months later. All of the damaging information from the Arriba Vista website has been removed by ditto.com so you cannot go there and see how it worked then. It exists only in files with my Attorney and with Judge Taylor. If you go to ditto.com, you will find an even different ditto.com that is using many of the images carried forward from Arriba Vista as it seeks annual sales of $100 million from its business operation. Type in http://arribavista.com and see where it takes you. Right to http://ditto.com

My lawsuit seeks damages from Arriba Soft for its egregious infringement of my images. Dumb? Again, I suggest that you ask the hundreds of thousands of people whose jobs depend of creative if it is okay to have their work used for the enrichment of someone else without permission and without compensation.

Dana, lets start with you since as a writer you use your creative talents to generate income. What would you do if you found someone using your creative for their own enrichment without permission, without compensation, be it text or images/graphics? I'll bet you would "Rant and Rave".

For those hundreds of thousands of individuals whose livelihood depends on creative work, images, photos, design, actors, writers, song writers, etc., the lawsuit represents an opportunity to support copyright on the Internet and help to stop egregious theft of copyrighted material, be it images, graphics, text or music. If Judge Taylor's decision stands as written, anyone's material, including your own, can be taken and manipulated for other's profit. The Internet represents an excellent marketing tool for artists. But, if your material is taken by dishonest companies to use to market their own products, that poses a problem for all of us. You may read about the organizations that I am proud to have support me at http://gag.org and http://asmp.org.

If you would like to have more information, the correct information about the lawsuit, you may visit http://netcopyrightlaw.com and read the original press releases filed under Media Coverage. Slow reading, but factual.

With best regards,

Leslie A. Kelly
NetCopyrightLaw Net Consulting Services


· Photographer To Appeal Ditto.com Net Imaging Copyright Ruling Newsbytes/Yahoo! News Asia 12/23/1999

· Web image copyrights unsettled: Court case highlights problems with protecting artwork online Inman News Service 12/23/99

· Court gives no copyright protection to Net images Deja News 12/22v/99

· Photographer To Appeal First Internet Image Copyright Law Decision Favoring Arriba Soft InternetWire 12/20/1999

· Court Ruling Denies Copyright Protection For Images On The Net 7am News FreeWire 12/21/1999

· Thumbnail Not Even a Tiny Infringement The National Law Journal 11/30/1999

· Graphic Artists Guild Funds Net-Copyright Infringement Case 7am News FreeWire 09/14/1999


Press Releases

For Immediate Release

Huntington Beach, California. Wednesday, March 22, 2000.
Leslie A. Kelly, Photographer, has filed an appeal in the recent decision by Judge Gary L. Taylor in his Internet copyright infringement case against Arriba Soft, Inc. The appeal will be handled by Charles D. Ossola, a partner at Arnold & Porter in Washington, D.C. and the head of that firm's Intellectual Property & Technology Practice Group. Mr. Ossola is a litigator and copyright expert. He also serves as the outside counsel for the American Society of Media Photographers, Inc. The case, filed under the 1998 Millennium Digital Copyright Act, is the first of its kind filed against an image search engine and has attracted widespread interest due to its potential impact on the use of images, music and other copyrighted material on the Internet.

Steve Krongold, Esq, The Krongold Law Firm, Costa Mesa, CA, first filed suit in Federal District Court, Santa Ana, California, against Arriba Soft, Inc., operating as the Arriba Vista Image Searcher, in April 1999, alleging copyright infringement of images from several of his websites (http://goldrush1849.com and http://showmethegold.com). Arriba Soft, Inc., which changed its name in July 1999 to ditto.com, took more than two million images from websites around the world without prior request, without permission and without compensation to support its marketing programs.

Kelly notes that "The court's decision in this case will likely establish the rules for use of images, and very likely, music and text, on the Internet for the Millennium. Its impact, regardless of the outcome, will cause changes in the way individuals and businesses think about and use the Internet."

Kelly has received support from trade and industry groups to include the Graphic Artists Guild and The American Society of Media Photographers, Inc. Additional interested trade groups are expected to file Amicus briefs in support of his Appeal.

Kelly operates a number of websites in support of his business interests at Amish.Net (http://amish.net), Show Me The Gold® Tours (http://showmethegold.com)and California's Gold Rush Country (http://goldrush1849.com).

Contact(s): Leslie A. Kelly, Les Kelly Enterprises (714) 846-0437 mailto:leskelly@deltanet.com Charles Ossola, Esq., Arnold & Porter, (202) 942-5000 Vic Perlman, ASMP (215) 451-2787 Paul Basista, Graphic Artists Guild, (800) 500-2672 Steve Krongold, Esq., The Krongold Law Firm, (714) 546-1800



PHOTOGRAPHER TO APPEAL FIRST INTERNET IMAGE COPYRIGHT LAW DECISION FAVORING ARRIBA SOFT

Huntington Beach, California. Leslie A. Kelly, photographer and publisher, confirmed today that Judge Gary L. Taylor ruled against him in his copyright infringement case against Arriba Soft Corporation, now known as ditto.com, Naperville, IL, in a decision filed on December 15, 1999 (Case SA CV 99-560 GLT (JW) United States District Court, Central District of California, Southern Division). Kelly filed suit on April 6, 1999, alleging copyright infringement by Arriba Soft’s ArribaVista Image Search Engine when it posted his copyrighted images in its image search engine without permission and without compensation.

According to Kelly, Judge Taylor concluded that "On apparent first impression, the Court holds the use by an Internet ‘visual search engine’ of others’ copyrighted images is a prima facie copyright violation, but it may be justified under the ‘fair use’ doctrine. The Court finds that, under the particular circumstances of this case, the ‘fair use’ doctrine applies, and the Digital Millennium Copyright Act is not violated.

In a prepared statement, Kelly stated: "Obviously, I am quite disappointed with Judge Taylor’s ruling not only against me in my specific case but against all creative artists, graphic designers, illustrators and photographers. Arriba Soft Corporation took more than two million images from web sites worldwide, without permission and without payment, in a commercial enterprise to sell it’s software and used these images to form the core database to operate it’s own Internet business. In July 1999, Arriba Soft changed its company name to ditto.com but maintained the same image database. In September 1999, executives of ditto.com were quoted in press stories that they anticipated achieving annual revenues of $100 million based on their use of these images.

"Because protection of intellectual property on the Internet is too important to let this decision go unchallenged, in the next few weeks, I will seek review of the decision and will review potential law firms to write an appeal as well as seek further assistance from groups adversely impacted by this decision.

"To determine that Arriba Soft’s use of my work without permission was just a small portion of their overall business and so therefore constitutes ‘fair use’ (or ‘free use’) clearly sends the wrong message to artists who hope to use the Internet as an important new market for their services. The Internet is huge and its potential is awesome. However, with the word ‘free’ used by so many companies on the Internet to market their services, there is serious concern that this decision, left unchallenged, will add to the already widespread and unfortunate belief that anything and everything on the Internet is ‘free’ for the taking.

"I wish to thank all of my fellow members and the leadership of Graphic Artists Guild (GAG) for their past and continuing financial support in this case. GAG, Local 3030 of the United Auto Workers, has not only supported me in my case, but also provided financial support for freelance writers, led by Jonathan Tasini, President, National Writers Union, UAW Local 1981, in their recent successful bid to uphold rights for electronic use of their work."

About Leslie A. Kelly
Kelly, a photographer and publisher from Huntingtion Beach, California, operates web sites Goldrush1849 and Showmethegold.com to support his business activities and recently established a web site at http://netcopyrightlaw.com to provide information about copyright issues and offer copyright related consulting services. He has written and/or illustrated travel related articles and published or provided photograhy for books about Laura Ingalls Wilder (including Laura Ingalls Wilder Country), the Amish (America’s Amish Country) and the California gold rush (California’s Gold Rush Country). Kelly is a member of the Graphic Artists Guild (GAG) and the American Society of Media Photographers, Inc. (AMSP).

Contacts:
Leslie A. Kelly,
Les Kelly Enterprises
(714) 846-0437
E-Mail: leskelly@deltanet.com

Paul Basista,
Executive Director, Graphic Artists Guild
(212) 791-3400
Web site: http://gag.org

Victor Perlman,
Managing Director and General Counsel ASMP
(215) 451-2767
Web site: http://asmp.org

Kelly is represented by Counsel:
Steven L. Krongold, Esq.,
THE KRONGOLD LAW FIRM,
Costa Mesa, CA
(714) 546-1800

James G. O'Neill, Esq.,
LAW OFFICE OF JAMES B. O'NEILL,
Costa Mesa, CA
(714) 549-8609



Press Statement November 30, 1999

For Immediate Release/Statement In Response To News Article in The National Law Journal, November 30, 1999

November 30, 1999. Huntington Beach, California.

The National Law Journal ran an article on their Internet page today that gives the impression that a decision has been handed down by Judge Taylor in my lawsuit against Arriba Soft Corporation. URLs below point to the story published on two separate web sites. The stories are based on an interview with the lead Attorney for Arriba Soft in the case and is certainly premature. While a preliminary decision was issued, it was and is still not the final decision as one might be led to believe in the NLJ stories.

On Monday, November 15, 1999, at the scheduled hearing in my case, Judge Taylor issued a preliminary decision on motion for summary judgement to which both parties had agreed as a means to speed the case along. The motion for summary judgement is common practice in US courts when both parties agree to stipulation of facts and when the remaining issues are strictly an interpretation of the law. At the hearing, Judge Taylor presented both parties with his written "preliminary" decision which was in favor of Arriba Soft. In most cases, at the end of the oral arguments, the Judge simply signs off on the "preliminary" decision and it then becomes THE decision.

Each Attorney was allowed five minutes to present oral argument for and against the decision. While my Attorney was persuasive, he did not convince Judge Taylor to change his verdict outright but the Judge did agree to review his findings and issue a written final decision in due course. We are uncertain how long this process will take but it could be several weeks or longer from November 15, 1999.

It is unusual for a Judge to change their original decision but it is possible. You will note in the NLJ article that Vic Perlman of the ASMP totally disagrees with the "fair use" argument based on size of the image that Judge Taylor offered in support of Arriba Soft's use of my images for their commercial purposes.

Once Judge Taylor announces his decision, I'll make a formal statement at that time.

Leslie A. Kelly



Press Release April 6, 1999

For Immediate Release

Huntington Beach, California. Tuesday, April 6, 1999. Leslie A. Kelly, a Huntington Beach photographer and publisher, dba Les Kelly Publications, Les Kelly Enterprises and Show Me The GoldSM announced today that Attorney Steven L. Krongold, Esq., and Attorney James G. O'Neill, Esq., filed a complaint alleging copyright infringement and related charges against Arriba Soft Corporation, 200 East Fifth Avenue, Suite 108, Naperville, Illinois 60563 and its ArribaVista.com Image Search Engine. The complaint was filed on April 2, 1999, as Case No. SACV 99-560 GLT Anx. The case was assigned to the Honorable Gary L. Taylor, U.S. District Court, Central District of California, Santa Ana, California.

Kelly operates two websites in conduct of commerce on the Internet (California's Gold Rush Country which supports his publishing business and Show Me The GoldSM at which supports incentive and rewards travel programs to the California Gold Rush Country). It was from these and other authorized websites that Kelly alleges his images were copied and posted by Arriba Soft Corporation in its Image Search Engine.

Contact Information:
Counsel Steven L. Krongold, Esq.,
THE KRONGOLD LAW FIRM,
Costa Mesa, CA (714) 546-1800

Counsel James G. O'Neill, Esq.,
LAW OFFICE OF JAMES B. O'NEILL,
Costa Mesa, CA (714) 549-8609

This press release prepared and distributed by Les Kelly Publications, 15802 Springdale Street, Suite 14, Huntington Beach, CA 92649



Press Release February 1, 1999

FOR IMMEDIATE RELEASE /Via E-Mail

CALIFORNIA FIRM ALLEGES COPYRIGHT INFRINGEMENT BY ARRIBAVISTA IMAGE SEARCHER

Contact Leslie A. Kelly at:
Les Kelly Enterprises
15802 Springdale St., Suite 14
Huntington Beach, CA 92649-1765
E-mail:leskelly@deltanet.com
(714) 846-0437
HUNTINGTON BEACH, CALIFORNIA. Monday, February 1, 1999. For the November 10, 1998, launch of the new image search engine, ArribaVista Image Searcher, Arriba Soft Corporation CEO Michael J. Lyons, is quoted in a company press release: "We all communicate more effectively through visuals and the Web is an incredibly rich environment for visual exploration. Our mission is to help people easily find the pictures they know they want and help them discover many others they’re glad they found along the way."

In an interview in the October 1997 edition of Chicago Software Newspaper, Lyons is quoted as stating, in part, about his four successful career startup operations: "I’m as pumped up today as I was when I started my first company because the Net has created a whole new world and the cowboys are back. It is the entrepreneurs who dominate that world right now."

With these quotes as backdrops, James G. O'Neill, Attorney, specializing in Patent, Trademark and Copyright cases, Costa Mesa, California, has sent notice to Arriba Soft Corporation of Naperville, Illinois, and its ArribaVista Image Searcher, alleging copyright infringement on behalf of Leslie A. Kelly of Les Kelly Enterprises, Huntington Beach, California. According to Kelly, "The cowboys may be back but this time the Marshals are in town."

Kelly, a photographer and publisher based in Huntington Beach, California, has discovered that copyrighted photography has been copied from his web sites Show Me The Gold and Gold Rush 1849, despite copyright notices, and posted by Arriba Soft Corporation in its new ArribaVista Image Searcher. The images have been posted within ArribaVista’s web site as individual "jpg" files, with their own distinct image file number and surrounded by banner advertisements, separate and apart from their context within his web sites, in Arriba Soft Corporation’s ArribaVista Image Searcher. All copyright management information (CMI) have been removed from the images.

According to Kelly and O'Neill's research, Arriba Soft Corporation launched ArribaVista Image Searcher as part of its overall corporate marketing effort for Arriba Express, an image file and storage system and its apparent major product. The system incorporates software with the name of WebVac which will literally "vacuum" all image files from a targeted web site, without regard to ownership of the targeted web sites. In a review of the software package which retails for $149, PC Magazine Online notes in a review dated January 19, 1999, by Stephen W. Plain, in praise of the software: "Arriba Express’s WebVac feature lets you ‘vacuum’ all the media assets off any given Web site."

After review of the ArribaVista web site, Kelly concluded that Arriba Soft Corporation’s ArribaVista Image Searcher had sought out his images along with approximately five million other images from web sites across the Internet.

"Despite copyright notices," according to Kelly, "it appears that ArribaVista ‘vacuumed’ every one of the images in both of my web sites along with a number of images authorized for use in other web sites. We are alleging that Arriba Soft Corporation infringed my images for its financial gain and for use by its customers and users. Based on copyright statutes and the more recent Millennium Digital Copyright Act, signed into law by President Bill Clinton on October 28, 1998, infringement for profit subjects the violator to damages and the potential for fines of $1,000,000 per violation!" Adds Kelly, "The Millennium Digital Copyright Act adds new terms and conditions that both protect and restrict image use by search engines. In the case of Arriba Soft Corporation, their use of my copyrighted images seems to place them at a very high risk for damages and fines!"

Kelly, whose work has been published in a number of books by HarperCollinsPublishers or self published on the subjects of Laura Ingalls Wilder, the Amish and the California Gold Rush, and published in numerous magazine articles, calendars, business brochures, etc., is deeply concerned about protecting the rights to his photography and artistic creation as well as loss of revenue from the alleged infringement by Arriba Soft Corporation’s ArribaVista Image Searcher. Kelly operates two web sites, one under the name of California's Gold Rush Country to support his publishing business and another under the name of Show Me The GoldSM to promote an incentive program licensing business and an incentive and rewards tour business in the California Gold Rush Country. His web sites are listed on the major search engines. Both web sites are clearly marked with copyright and trademark notices.

In the November 10, 1998, Arriba Soft Corporation’s press release, say Kelly, "The core purpose of the ArribaVista Image Searcher is apparent." The press release notes, in part, "The digital images from Arriba Vista can automatically be downloaded into the Arriba Express media management product by clicking a button located on the Arriba Vista search results page. The combination of Arriba Vista and Arriba Express enables users to rapidly capture, view, edit, organize and re-use media files, significantly reducing time and money spent on media creation and management."

Kelly comments, "I am shocked and dismayed to see my images displayed, without copyright management information and without permission, by ArribaVista Image Searcher for use by purchasers of Arriba Express from Arriba Soft Corporation and others. It is imperative that search engines honor copyright and trademark laws while in pursuit of offering images to their customers. Opt out, as in the case of Compaq’s AltaVista™ AV Photo Finder and now ArribaVista Image Searcher, makes it very difficult for a small company to protect its creative property from piracy while pursuing honest trade on the Internet. It is quite burdensome, financially, for small companies to take appropriate legal action where there are violations by large corporations. Fortunately, traditional copyright law and the new Millennium Digital Copyright Act offer protection and provide penalties for infringement."

Kelly notes that Compaq’s AltaVista™ AV Photo Finder, to which O’Neill sent notice of copyright infringement in October 1998, and operates at http://www.altavista.com, and ArribaVista Image Searcher, and operates at http://www.arribavista.com, both store images in their own web sites and assign their own file numbers to the images which they have taken from web sites without prior request or any form of permission. "It appears that they not only have similar names and similar URLs, they seem to operate in the same way," Kelly concludes.

"In the case of ArribaVista Image Searcher, however, there is no visible copyright warning of any kind on the search page. There is a copyright statement which can be reached by clicking on Copyright at the bottom of this page. The disclaimer that was in place until Monday, January 25, 1999, dwelled more on ‘fair use’ than concern about protecting the owners of the infringed images. From midday Monday, in response to criticism about infringement from copyright owners of infringed images, the text was hastily rewritten with contradictory statements about ownership and use. The statement acknowledges that ArribaVista Image Searcher contains images for which it is NOT the copyright owner but does claim ownership of the entire collection when it states "Arriba Soft Corporation makes no copyright claim to the individual images aggregated on the web site, but does claim copyright ownership in the compilation of images displayed on the web site."

"Given the statements attributed to CEO Lyons, that ‘the cowboys are back,’ it seems to fit within the style of the organization to claim ownership of intellectual property that it ‘vacuumed’ from the Web." According to Kelly, "With some five million images in the ArribaVista Image Searcher, none of which have ever been the property of Arriba Soft Corporation, it is a very unique claim, even for a 49er of the gold rush era. Even this year, 1999, on the Sesquicentennial of the California Gold Rush, I don’t believe that their claim will hold up in court."

Concludes Kelly, "Whoa there, pardner."



For a demonstration of the ArribaVista Image Searcher, click here Enter in quotes, "Malakoff Diggins" and press enter. ArribaVista image files display by dragging the mouse arrow over the thumbnail image. For a larger version of a specific image, double click on the image. This "window in window" image is actually the specific .jpg file loaded from Gold Rush 1849.com Throughout the process, you will note that there is NO copyright management information (CMI) displayed about the owner of the images. There are, of course, banners above each window.

If you are unable to access the image noted above, please contact Leslie A. Kelly and samples which have been preserved of infringed images from the ArribaVista Image Searcher will be e-mail for your review.

This press release prepared by and distributed by
Leslie A. Kelly
Les Kelly Enterprises
15802 Springdale Street, Suite 14
Huntington Beach, CA 92649-1765
(714) 846-0437 Fax (714) 846-8858
E-mail: Leslie A. Kelly
Show Me The Gold
Gold Rush 1849
Show Me The GoldSM (Application pending USPTO)

Leslie A. Kelly is represented by Legal Counsel
James G. O'Neill
Attorney at Law
3151 Airway Avenue, Suite K-105
Costa Mesa, CA 92626
(714) 549-8609 Fax (714) 549-8626


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