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Kelly v Arriba Soft Corp

from FT .com


A ruling that robs the public domain

A landmark copyright case threatens to render illegal all links on the web,
says Patti Waldmeir

Published : Apr 03 2002 16:34:19 GMT | Last Updated : Apr 03 2002 16:53:38

Technology always outruns the law, but when the lawmakers begin to catch
up, watch out.  For years, US lawmakers sat quietly by as the internet
redefined the very notion of property. They watched as online music
pirates rendered private property meaningless by fostering a culture of
theft. They failed to defend the social bargain that fosters creativity:
that creators must be allowed to profit from their output or they will
stop creating.  Now those who make the laws, in the US Congress and the
courts, seem set on restoring the supremacy of property. They risk
overdoing it.


The new legislation could well outlaw not just illegal theft but perfectly
legal pilfering. US law has long allowed limited "fair use" of copyrighted
material without permission or payment, in the interests of promoting
education, creativity and free speech. Legislators need to think twice
before robbing the public domain just to pay the content owners.


The ninth circuit US court of appeals is being lobbied to reconsider a
dangerous if little noticed decision handed down in February. The case
involves the quintessential web practice of linking. Critics say it could
turn almost every web link into an act of copyright infringement,
threatening the unique value of the web as a tool of knowledge by
preventing people from finding their way around it.

The case, Kelly v Arriba Soft Corp, involves a "visual search engine"
located at www.ditto.com. Ditto (formerly known as Arriba) trawls the web
to produce "thumbnail" images of millions of photographs including those
of Les Kelly, a photographer of the American West, who sued them for
reproducing miniatures of his images without his permission, and using
them to link to his original photos.

A three-judge panel of the appeals court rebuffed Kelly on his thumbnail
claim, ruling that it was legal "fair use" for Ditto to display the tiny
images.  But in a much more far-reaching ruling, the court said Ditto
could not also send users to the original photo through a link. It was the
first time an appellate court had ruled on the issue of "in-line linking"
or "framing", the practice followed by many search engines of providing a
link that opens a browser window displaying material from another website.