Les Kelly fights on...
SHOULD PHOTO INDEXING BE BY INVITATION?
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Advance Notes: Photographer Les Kelly is on a mission. In 1998, a search engine called, Arriba Soft Inc., was displaying 35 of his images of the California gold rush country without his consent. As a result, he sued Arriba Soft Inc., for copyright infringement. Because of this experience, Les has made a concerted effort to alert the photography community about a potential crisis: What if a search engine, using web crawler technology, were allowed to legally exhibit any photos it found on the web? With the backing of photography and graphic arts organizations, he took his case to court. Our PhotoStockNotes reporter brings us up to date on Les Kelly's undertaking.
PSN: When did search engines start collecting images from the Web and placing them in image libraries?
LK: Images were first indexed by text-based search engines in October 1998. The first was Alta Vista's Photo Finder. Its launch was met with an outcry world-wide from photographers and graphic artists who did not want their images displayed.
PSN: What was Alta Vista's response?
LK: Alta Vista made some changes, to include automatic removal, and direct connection to the front page of the website.
PSN: Your court battle has been against Arriba Soft, Inc. Give us some background on that search engine.
LK: Arriba Soft Inc.launched its service in November 1998, the Arriba Vista Image Searcher, which was tied to its Arriba Express software which allowed the download and manipulation of images. The Arriba Packet Rat, the Arriba Soft robot, was not programmed to honor robots.txt. It gathered more than 6 million images from the Net in this manner, in what it called mining an "embarrassment of riches."
PSN: How was it going to profit by this?
LK: It was quite clear that the Arriba Vista Image Searcher's entire purpose was to serve as a database for users of the Arriba Express software. Arriba Soft bragged that it expected to generate sales of US$149 million of its new software in the first year.
PSN: But wouldn't this be illegal?
LK: Yes. This business model is commercial exploitation of copyrighted images and completely illegal per USC17 and the Digital Millennium Copyright Act. According to an interview in the October 1997 edition of Chicago Software Newspaper, Michael J. Lyons, Founder and former Chairman of the Board, Arriba Soft, Inc., stated, in part, about his four "successful" career startup operations, when bragging about Arriba Soft's launch: "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." Lyons' Arriba Vista Image Searcher was met worldwide with complaints about his business model because it deep-linked the images, framed with his own website's advertising, completely out of context with the intent of the owner's of the copyrighted and copyright registered images of the owners.
PSN: How did the stock photography community react ?
LK: Thousands of photographers and artists complained directly to ArribaSoft, Inc., and made their voices heard in chat groups. It was in this context and setting that I filed my lawsuit, Kelly v Arriba Soft, Inc., in April 1999, after Arriba Soft refused to settle for their vicarious copyright infringement.
PSN: How did the case turn out?
LK: Judge Taylor ruled against my filing based not on the issues outlined above but based on the "established importance of search engines." It is unfortunate that all of his history of the case has been overlooked by those who are new to the issue!
PSN: Did you appeal?
LK: Yes, to the Ninth Court of Appeals.
PSN: What ever happened to Michael J. Lyons ?
LK: Less than four years later, ousted out of his corporate digs in Illinois, California and New York, and after operating from his home in Elmhurst, IL, as a one-man business, Lyons recently sold his database of images to Sorceron, Inc, because he was not able to create a viable business from his theft of images. Sorceron's plans are currently unknown but likely on hold pending the decision by the Ninth Circuit of Appeals in my case of Kelly v Arriba Soft, Inc.
PSN: What are you going to stress in your appeal?
LK: I am concerned about the intent and purpose of image search engines. I believe that their indexing should be by invitation only or by licensing agreements only. This is the way it works in the real world outside the Internet. There is no reason why the rules should be any different on the Internet.
PSN: Are you the only voice out there asking that the courts take a hard look at how image displays on image search engines are detrimental to photographers and graphic artists?
LK: Many people think that I am the only person ever to raise concerns about image search engines and image displays at the text based search engines. Alta Vista buckled under pressure and made significant operational changes in 1998 because of widespread and highly publicized complaints.
PSN: What effect did your lawsuit have on Arriba Soft?
LK: Arriba Soft, Inc., dumped the Arriba Vista Image Searcher, based on the large amount of criticism it received and from my lawsuit. It changed its corporate identity and its image search engine to Ditto.com in July 1999 to further distance its vicarious past and moved through at least three more business models prior to going out of business. Also, Scour.Net dropped out more than a year ago when it was faced with a lawsuit for its Napster-like operations.
PSN: Have similar search engines come along?
LK: Yes. A second image search engine which started in February 2001, Diggit! Image Searcher, dropped out in August 2001 when it became apparent that its purpose for gathering 12.7 million images was solely to offer a "demonstration project" of its new software, again, commercial exploitation of copyrighted material. PicSearch, based in Sweden, is the third and the latest image search engine to start up. It is still in a "testing" mode. Even though it hasn't included advertising in its operation, it is actively seeking to sell its database use to other search engines and again, its use becomes vicarious by holding up the images of others for use for which it doesn't have permission.
PSN: Are you the only person, so far, to file a lawsuit of this nature?
LK: Yes, I am the only person to file a lawsuit against an image search engine. It takes about $50,000 to start a lawsuit, even more to finish it. These are numbers that are too expensive for the average photographer and graphic artist to finance.
PSN: The photography community must be thankful that you have taken this on your shoulders. Have you gotten any help?
LK: Yes. I am not alone in my efforts. Far, far from it! Hundreds of thousands of photographers, graphic artists, illustrators and writers have joined with me.
PSN: Have you gotten financial support?
LK: Yes. I have received financial support from the American Society for Media Photographers and the Graphic Artists Guild. My appeal to the Ninth Circuit Court of Appeals was sponsored by the American Society for Media Photographers and amici curiae briefs were filed by major organizations with a strong interest in the protection of copyrighted material placed on the Internet; Graphic Artists Guild, 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.
PSN: There are thousands of photographers, amateur and professionals alike, who would love to have their photography displayed on the Internet for both commercial and personal reasons. If your lawsuit were successful, wouldn't it put a chill on the free flow of images, much like it did with music with the dismantling of Napster ?
LK: I do not subscribe to the idea that Napster has generated a positive response to use of music on the Net. Napster created the largest database of stolen music on the Net and, when slapped with court action, fought back by claiming that they really didn't do it. The world is still waiting for the penalties to be levied and creation of a "legal" Napster. In the meantime, Napster has spawned copycats world-wide and has threatened the spread of copyright theft.
PSN: Wouldn't your lawsuit discourage Internet entrepreneurs who plan to offer websites that display images and/or text?
LK: I do not believe that protection of copyrighted images, graphics and text, would put a chill on Internet search engine entrepreneurs who seek to place text and photos found on the Internet. It would create an environment which would offer protections for both text and images.
PSN: Stock photographers like to display their photos on the Web so that potential clients can see them for possible licensing. Wouldn't this harm their possibilities to make sales?
LK: Most photographers with whom I am familiar place their images on their websites in a specific context other than direct sales of the specific images. My own are placed with text in my websites to help publicize and sell my books, not to sell individual images. I am not aware of a large number of photographers who make their livelihood selling their images on the Net.
PSN: You've come a long way with your fight to prevent unlawful use of photographers' and graphic artists' images on the web. Will it soon be over?
LK: What was begun in Kelly v Arriba Soft, Inc., was not the desired outcome by any means. My case was filed because a new, rogue (remember the cowboy comment from Lyons?) image search engine aggregated some 6 million images as a royalty free database for the purchasers of its proprietary software which it projected would generate $149 million for the owners of Arriba Soft, Inc., and not a penny for the owners of the material. It was Judge Taylor who "hijacked" my case from a simple copyright infringement case, albeit the first ever lawsuit against an image search engine, and turned it into a "fair use" case of thumbnails because of his desire not to harm the emergence of new businesses involved with search functions. At this time, I am awaiting the outcome of Kelly v Arriba Soft, Inc., with an expected decision in mid Spring 2002. In the meantime, I have just filed my third lawsuit against copyright infringement discovered on the Net. It is about text rather than images. Details can be found at http://netcopyrightlaw.com
(Leslie A. Kelly Leskelly@deltanet.com)
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