Back in Feb, we wrote about Photos, blogging and fair use, as photographer Naomi Harris had found her picture on the popular soft-porn blog fleshbot (part of Gawker media) and wasn't too pleased. After reading PDN's article and checking Gawkers disclaimer I was more confused than enlightened. Were blogs and search engines suddenly the same thing?
Gawkers disclaimer states that it follows the DMCA and links to a pdf of the Leslie Kelly, et al. v. Arriba Soft Corp. ruling, which is the case of a photographer vs a search engine image search (much like google images) that used thumbnails for visual representations of the search results. See "Kelly wins against Arriba Soft Appellate Court affirms US Copyright Law protects images located on the Internet"
Luckily, this posting put me in touch with Leslie A. Kelly who probably knows more about the subject than anybody, so here follows a short chat with Leslie A. Kelly from the now famous Leslie Kelly, et al. v. Arriba Soft Corp case.
Db: Hey there, can I ask you some questions? "Copyright" seems to have become a curse-word these days, and conjurs up images of giant rich Hollywood Movie&Music corporations clamping down on teens rather than a single artist trying to make a living. This really bothers me, and I'm sure you. So can we chat about your case a little?
Kelly: I am very pleased to elaborate on the meaning of Kelly v Arriba Soft and what it truly means to image searches and the use of thumbnails as well as other copyright issues of the day.
Db: Lets start with a recap for those who still don't 'get it', as you either find misinformation or long papers in leaglese about your case on the web, could you explain shortly what your case was about?
Kelly: Simply put, Michael Lyons, ever the entrepreneur, thought that he had a winner for mine the riches, as he put it, the embarrassment of riches, offered by the images posted on the Internet in its infancy in 1998. He came up with a scheme to "mine" these riches with his image search engine, named, "Arriba Soft Image Searcher", which, combined with his propriety software, Arriba Express, would net him one hundred million units @ $149 each. His premise was simple but so illegal. His software sought out images, some 4 million plus he boasted when it launched, and his image search results which framed full sized images as in line linked images drawn from the servers of the image owner and framed with advertising and display of Arriba Soft Image Searcher, and, importantly, tagged with little clickable squares for which the images could be downloaded with the Arriba Express software. There was no mention about copyright or ownership in the original versions of Michael Lyons' wonderful creation, Arriba Soft Image Searcher. Incredibly, Lyons and his group projected sales of 1,000,000 units @ $149 or US$149,000,000. None of the images were his. The clincher for me was a video that he put out on the Net, an Infomercial, in which he bragged about the embarrasment of riches, that was just his to mine!
Db: Ah yes, quite cocky of him. As we've discussed earlier, it seems that people think that the 'greenlighted' use of small thumbnails applies to thumbnails in blogs/webpages in general, and not only on search engines. Do you have any ideas on why blogs think that they should be granted some kind of universal right to reproduce images without permission (they are far from search engines after all).
Kelly: I can only say that I've never met a smart thief, especially one who has done a right click. download. My website @ http://netcopyrightlaw.com has chronicled numerous individual infringements. Kelly v Arriba Soft was all about thumbnail uses for image search engines which link directly to the main page on the page on which the images resides. Kelly v Arriba Soft established that critera, one which has been adopted by all image search engines. I do not believe that image search engines are inherently bad.
Blogs have obviously found themselves in a cutting edge position for dissemination of information. However, just like any other technology they need to understand that they cannot trample the rights of others.
I routinely find images, thanks to the race to index the web by giants Yahoo.com and Google.com, of brazen users who believe that thumbnails are okay on websites. My approach to the majority of the illegal users is to do a Notice of Claimed Infringement (17 USC §512(c)(3) and have the website deleted. Its a pain but it works. As I have often stated to my Attorney's and for which I have written at lenght at http://netcopyrightlaw.com, "I educate one thief at a time."
Db: Lots of people feel it's not worth it to go after infringers, especially when they are large and have all sorts of legal resources. What would you say to them?
Kelly: Lawsuits are expensive. No question about that. It is US$20k just to file; another US$30 to US$50K to carry it to trial. And even more if it goes to trial. Fortunately, most lawsuits are settled without getting to trial.
Db: And on a related note, today I read that Perfect 10 filed to sue Amazon for displaying their copyrighted images (in a search engine type kinda but not really) setting.
Kelly: I've had extensive exchanges in writing, e-mails, and in phone conversations, with Norm Zayda, regarding his issues with Google.com. I am not only empathetic to his position as a copyright holder but fully supportive of his position and legal points in his lawsuits. I fully concur that his intellectual property is being used by Google.com to further its own financial gain. One can go to Google.com and do a search for almost any anatomical term whether porn or not and you can see that Google.com is truly a leader in the area of porn search results. It pays and Google.com is using Norm's Perfect 10 intellectual property for Google's financial gain. It reminds me a lot of Michael Lyon's comments about the "embarrasment of riches" on the Net.
Db: Tempting to crack a joke about the goldrush here but that's kind old isn't it? Thanks for your time answering these questions for us. :)