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PHOTOGRAPHER RESPONDS TO NINTH CIRCUIT COURT REGARDING DECISION SUPPORTING COPYRIGHT OWNERS OF INTELLECTUAL PROPERTY

 
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Update: Kelly v Arriba Soft

Huntington Beach, CA -- (SEND2PRESS NEWSWIRE via PRNetwire) -- April 4, 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., and 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 vicarious 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 US Fifth Circuit 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 display, 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/kellybrief03262002.pdf ]. The ASMP et al brief can be located at http://netcopyrightlaw.com/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.

Les Kelly Enterprises, 15802 Springdale Street, Suite 14, Huntington Beach, CA 92649-1765.
netcopyrightlaw.com

MEDIA CONTACT: leskelly@concentric.net (714) 433-3704.

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