Re: Kelly v. Arriba Soft (new opinion from 9thCir.)

on 8/21/03 10:40 AM, CNI-COPYRIGHT -- Copyright & Intellectual Property at CNI-COPYRIGHT[_at_]cni.org wrote:

> Date: Thu, 21 Aug 2003 11:40:40 -0400
> Message-ID: <redirect-858906[_at_]cni.org>
> From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
> Subject: [CNI-(C)] Re: Kelly v. Arriba Soft (new opinion from 9thCir.)
>
>
> --- Keith Handley <kehandley89[_at_]alumni.amherst.edu> wrote:
>

>> Dear Bodi,
>> 
>> Is the HTML code below an infringement of Linda's copyright?  Assume that
>> if I photographed my computer screen while MS Internet Explorer was
>> interpreting this code, it would be an infringement of her copyright.
>> Assume that, if you go to the website below you see (as you would have
>> seen a few weeks ago) images created by Linda.  (I have included a
>> "<!--" at the beginning to try to prevent mail readers from interpreting
>> this as HTML.) If so, who is or who are the infringers?
>> 
>> Is the website http://www.amherstrugby.org/myart.html an infringement of your
>> copyright? If so, who is or who are the infringers?  What if the page had a
>> shopping cart and I was selling crystals?

Hello Bryan,

Thank you. Your insistence that I should have controlled whether the images were sent led me to search yet again for a method to prevent bandwidth theft. The hot links script has only recently been offered by my web host. I wasn't aware of it when Keith linked my images to use as the content for his page.

>>[Snipped all the HTTP Trace info]

> To answer your question, your page is not infringing of either Linda Gruber,
> or of McDonalds. Neither is my use of your page, nor is our cooperation to ask
> McDonalds to create a copy of their image on my page. I asked they said "OK",
> so I have a licence. I also asked Linda Gruber, she did not say "OK", so I
> have no licence and did not get any images.
>
> Morover, your page (which previously DID retrieve Linda Gruber's images) was
> not infringing before. Linda Gruber has, GASP, ended the period of unqualified
> affirmative responses to requests for her work, as is her right. The fact that
> your page directs requests back to hers has allowed her to keep her right to
> authorize. She was always in control of whether or not her images would be
> set.
> Now she has elected to use that control. Had you copied her images to your own
> site instead of inlining them, you would have deprived her of her statutory
> right to be the authorizor, which shows nicely how critically different
> inlining is from separate copying, even though a naive user might never know
> the difference.
>

I think you assume too much technical knowledge, scripting capability, and access to the server root for most web content providers. I have very little scripting ability. In the past, I couldn't manage to stop my server answering requests from other sites. I was stuck with the host's default "yes" response over which I had no say until my host provided a working script. That's why I have always had terms on my site. I felt it was necessary to correct any misapprehension the server's default and browser capabilities may give.

Serving an image to another site based on the default employed by the web host should NOT be construed to mean that all web masters who rent server space from that host give implicit permission to make non-exclusive use of all viewable files on the host's server. The only permission that may be implied by the placement of my images on the web is that viewers have permission to view my files as displayed on my web site. Most content providers have terms which make it obvious that NO implicit permission is intended in spite of the fact that both browser and server may make it possible to obtain copies without first obtaining permission.

No matter how much technology I employ to try to prevent infringement, there always seems to be some way that a determined infringer can get around it. When someone emails to say that my no-right-click script didn't stop them from copying my images, I tell them that the script is like a lock on a door. It won't stop a determined burglar who will simply break a window to enter. The lock is there to provide a boundary and reduce temptation for all the other visitors.

I think that the click through agreement and the terms on my site make it abundantly clear that one must obtain explicit permission and agree to provide extraordinary care when seeking permission to display my work elsewhere on the web. So, naturally, I think you are wrong to say that Keith Handley's unauthorized derivative use and display of my images constituted no infringement because I "implied my agreement rather than preventing it. Remember, Keith had to agree to abide by my terms in order to enter my site.

My terms require:
a) housing the image on a web host that does not expect non-exclusive rights to all content place on their servers nor demand that the web master indemnify them against infringement claims. b) obtaining my permission to display watermarked versions of my work which are designed specifically for off-site gallery use; c) downloading the authorized file and uploading it to the gallery's own server;
d) displaying the image along with the text version of my copyright notice; e) linking both image and copyright notice to my index page or linking them to terms on the display page which are linked to my index page; f) displaying terms on the same page as the image to make it clear that my images are for viewing in the hosting gallery only (not for download, distribution, or sale);
g) employing a "no right click" pop-up on the display page to remind forgetful visitors that the images are for viewing only; h) employing robots.txt file and/or [NO]INDEX meta tag to try to prevent image search engine robots from indexing the page.

Linda Gruber
Novel Art
http://www.novelart.com Received on Mon Aug 25 2003 - 19:15:02 GMT