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

on 8/26/03 4:38 PM, CNI-COPYRIGHT -- Copyright & Intellectual Property at CNI-COPYRIGHT[_at_]cni.org Keith Handley kehandley89[_at_]alumni.amherst.edu wrote:

> And to Linda, I think most of us recognize that it is courteous and may
> makes sense for many reasons to ask for your blessing before deep linking to
> one of your pictures, if your site still allowed it. But also realize that
> you have no idea where I got the exact URLs of the pictures I linked to.
> Perhaps I got them from somebody who (assuming your "I agree" button is
> legally enforceable) is violating his agreement. Sure, he violated your
> contract, but I am not violating your contract.

Hello Keith,

I believe you said in your first post that you browsed my site which included the perusal of my source code. Saying that you might have gotten the image URLs from someone else who broke the agreement won't fly. You accessed my site. BTW, that excuse is exactly why obtaining permission from the copyright holder is the obligation of the person who wants to use copyrighted works. Turning a blind eye to questionable circumstances of acquisition will not make one an innocent infringer. Anyone who uses works "found" on the web to create content for their own site WITHOUT getting express permission and/or license for such use directly from the copyright holder, is taking the risk of infringing someone's copyright unless the use is patently a fair use. In any event, my click through contract is ADDITIONAL to my rights under copyright law. My copyrights still protect my works from being used in an unauthorized manner with the exception of fair use purposes.

> Since (as Brian and I claim) my webpage is not doing any copying, my webpage
> is not infringing on your copyright.

Please read http://www.copyright.gov/title17/92chap12.html#1201 Specifically, "§ 1202. Integrity of copyright management information."

As I read circular 92, I believe you would be found to be infringing. Your in-line link circumvented the technology I utilize for copyright management so that you could display copyrighted elements obtained from my web site on a derivative web site which DOES NOT display my image titles, my copyright notice, or my terms, and does not include my no-right-click script. You also presented false copyright management information by claiming that the images were yours.

> I may be impolite or even evil for doing it, but asserting that the web and
> copyright are what you think they should be does not make them so.

A bit more than impolite. You usurped my exclusive right to create derivative works and display my copyrighted work where and how I see fit.

> You write as if the web and copyright were created for the express purpose of
> digital artists being able to make a living.

It was not created for that express purpose, but the internet has become a marketplace, and there should be no impediment to selling and licensing digital content in the medium that is best suited for that sort of commerce.

Linda Gruber

Novel Art
http://www.novelart.com Received on Fri Aug 29 2003 - 00:35:14 GMT