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

> Keith Handley wrote:
> Boy, I'd hate to be at a cocktail party where every time the subject changed,
> somebody quizzed me to find out what interest I had in joining the discussion.

Hello Keith,

You linked to my images and initiated a debate about whether the in-line links you used to display them on your site was an infringement. The situation is not the same as joining a casual conversation at a cocktail party. My web site is posted at the bottom of each of my posts, so it is easy to discover who I am. The same is not true of you. I've been in the dark about your motives and your background. I gave you the benefit of the doubt and proceeded as though you simply have an interest in testing the limits of the copyright law as it applies to the WWW and created your site to introduce a provocative subject for discussion. You mentioned my interest in copyright education as a cause at Novel Art, so I assumed that you chose me because you thought I wouldn't mind if my art were used to create a concrete example for the purpose of discussion. (I did mind, but I decided to discuss the matter and assume that your motives were pure even if your actions were not.) Still, until I remembered 1202 I was baffled by your claim of authorship over my work and your deliberate distortion of it which served no purpose in illuminating the issue of whether in-line linking was an infringement, a contributory infringement, or no infringement at all as you contend.

>
> That doesn't mean, however, that it is wrong to do a little research on your
> fellow virtual "party guests."
>
> from http://www.lindagruber.com/index1.html
>
> "Copyright education is my "cause" at Novel Art."
>
> from http://www.lindagruber.com/novelart/legal/copyrite.html [sic]
> -------------
> 4. Sometimes artists are their own enemy.
>
> Surprised? Well, it is sad but true. Some artists do not see the big picture.
> Others just can't say no when they are asked. Some don't really care about
> their fellow artists and the damage that can be caused by careless actions.
> When artists allow others to incorporate their work in a background set, it is
> perfectly within their copyright to do so. However, given the climate of the
> internet and the unconscionable infringement of copyrighted images, is this
> wise? I ask these artists, how is anyone to know whether a license was
> obtained to use your image on a given background once it is used elsewhere on
> a dozen homepages? Allowing this use adds to the problem and clouds the issue.
> Webmasters use your permission to do "renderings" of your work as an excuse
> when they swipe another artist's image. "Well, so and so let me do it, so I
> thought you would be honored."
>
> For those consummate professionals who offer their art for awards and
> backgrounds, maybe your image has had a good long run and made lots of money
> for you in stock sales, but what about the newcomers who have their images
> stolen and used? Until netizens are aware that ONLY licensed images may be
> used in this way, it's unfair to sell or permit the use of art that's
> obviously not designed originally as web decor. I believe this so much that I
> do not even make my own fantasy art into web backgrounds. If I did, you can
> bet that there would be a dozen others who would decide to make their own
> rendition of my work without my knowledge.
>
> For those talented amateur artists who say, "Professionals are stingy because
> I GIVE my work away." I think you have got the wrong idea about the golden
> rule. It's not, "I don't care if you do it to me, so that gives me the right
> to do it to you." If you don't want to make a career with your artistic talent
> that's fine. Does that give you the right to try to wreck other artists'
> incomes? Give away your art if you want, but make it clear that this is your
> choice, and it's definitely NOT standard WWW practice. Then maybe your
> visitors won't expect professionals to join you. And please, don't use your
> free offerings to actively compete with professionals for jobs. It's not a
> hobby for professionals. It is their livelihood.
> -------------------
>
> (Keith H. here again):
> I would hate for the opinions of the person who wrote that to go unchallenged
> here. Yes, I realize she probably has not expressed the above in this forum,
> and I'm not going to dismiss anything she writes here as the rantings of that
> crazy lady who thinks that people giving their own stuff away is hurting her;
> I will (or, actually, Brian was doing it better than I could, so I shut up)
> try to bring a logical legal analysis to it when I think she opines wrongly
> here. But some part of my interest in this topic is personal animosity toward
> Linda's above opinion (especially in the light of her "cause," copyright
> education), though a look at the list archives:
>
> https://mail2.cni.org/Lists/CNI-COPYRIGHT/Message/1316400.html
>
> shows that I had the same argument in favor of framing someone else's website
> not being an infringement of copyright in May of 1997.

For those who believe Keith's evaluation of my opinions, I can only suggest that you try to look at my words in the context of the entire page I wrote and consider them in a context that makes sense to YOUR livelihood. Would you mind if someone went to your employer and offered to do your job for free? If you own a restaurant, would you mind if the city council and the churches in town decided it would be good for tourism and church coffers if there were a perpetual food festival set up on the sidewalk right outside your establishment? If you are a doctor, would you mind if pharmacists claim the right to write prescriptions for free so patients don't have to visit a doctor for simple prescriptions?

I didn't say people could not give away their artwork if they wanted. In a nutshell, I said that it was their right to do so, but I question whether it is wise given the climate of the internet, the damage it does to the market, and the way it confuses public perception and obscures the need to obtain permissions and/or licenses for works used online. Other artists agree with me and have linked to that page and to other opinionated writings on my web site. I even had an email from a former amateur artist who decided to turn pro. She admitted to being offended by my opinion before, but she understood once she was on the other side of the divide. Some of the professional artists who were permitting works to be used in derivative amateur renderings also got the message and ended the practice. So while my opinions may "drive you crazy" when they don't coincide with your point of view, I assure you they are not the rantings of a crazy lady.

I've reconsidered your motives and actions in light of the way you posted opinions I expressed on my web site and characterized them as "the rantings of a crazy lady." Now, it seems as if you are attempting to goad me into bringing an infringement case against you which includes 1202 implications. Is that your goal? Are you hoping to test your position in court?

Linda Gruber

Novel Art
http://www.novelart.com Received on Thu Oct 02 2003 - 19:29:58 GMT