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Kelly v. Arriba Soft - The Phantom Menace?
Posted by Ernest Miller on Friday, April 12 @ 09:04:42 EDT Copyright
Last Tuesday, LawMeme posted a short note about an editorial in the Financial Times (In-line Linking Illegal Says 9th Circuit). The editorial by Patti Waldmeir (A ruling that robs the public domain) argued that the Ninth Circuit's appellate decision [PDF] in Kelly v. Arriba Soft Corp. could have chilling effects on Internet linking. Her reasoning paralled that of the Electronic Frontier Foundation, which had filed an amicus brief on behalf of Arriba Soft, (now ditto.com) (EFF "Intellectual Property Online - Linking, Framing & Inlining - Kelly v. Arriba Soft Corp./Ditto.com" Archive) and is now seeking review of the decision (EFF Defends Internet Linking - Asks Court to Rehear Ditto.com Case). Not everyone agrees with this analysis. Lawblogger Denise Howell of Bag and Baggage believes the Ninth Circuit "struck a reasonable balance" in its decision (Fair Use Parameters For Deep Linking). It almost goes without saying that the plaintiff, Mr. Les Kelly, also disagrees that the decision threatens the fabric of the Internet. Mr. Kelly has written a response to Ms. Waldmeir's editorial, which we publish below:

Letters To The Editor
FT.com
Castle House
37-45 Paul Street
London EC2A 4LS
England

Ms. Patti Waldmeir
Columnist
Financial Times
Washington, DC

Dear Editors:
Dear Ms. Waldmeir:

On this date I received three e-mails, from very UK young adult polite to improper characterization as "obscenely American", the author of a "potentially dangerous" lawsuit that "could disrupt the entire internet" and one particularly virulent (but somewhat lacking in spelling skills) person who offered "Thanks for helping destroy the Internet, instead of hiring a competant [sic] webmaster" and closed with "Hoping you get an incurable disease." And, "You are a walking contradiction. I find it hilarious that you use links in your site, yet you sue someone for using links in theirs. Way to ruin the internet, jackass." It took only a few minutes to chase down the source of confusion for this set of young people, misled as they were, to your article of April 4, 2002, which appeared at FT.com. It was helpful, too, that one of them referenced your article "INSIDE TRACK: A ruling that robs the public domain: A landmark copyright case threatens to render illegal all links on the web" which appeared at ARTICLE

It became clear as I read through your article that all of their crazy ideas about my lawsuit, and their characterizations of my character, except for the "incurable disease" thing, sprang from your words written so eloquently yet so ignorant of the facts of Kelly v Arriba Soft and the decision of the Judges of the Ninth Circuit Court of Appeals.

I was particularly concerned by the one writer, who attempted to disguise himself through a fake e-mail return (these young folks don't understand that older folks actually understand e-mail protocol, too), that hoped I would get an incurable disease, and saddened that the speller of "competant" might not have learned his English properly. I am proud to be an American but certainly not one who is obscene, a jackass or potentially dangerous to the Internet.

All of this makes me very much concerned about the exposure of the incorrect and inaccurate information contained in the article which you authored wherein you relied upon biased and oft incorrectly referenced legal opinions as served up by the "Digital freedom fighters" of the Electronic Frontier Foundation (see EFF Defends Internet Linking - Asks Court to Rehear Ditto.com Case and EFF Amicus Curiae Brief in Kelly v. Arriba Soft (Feb. 27, 2002))

Despite your presentation of the EFF brief among your own comments about copyright, and the comments made by the young folks, my case does not threaten the fabric of the Internet. It does not threaten linking; it addresses only the specific issues of Arriba Soft's Arriba Vista Image Searcher's inline linking and framing, a matter addressed by the Ninth Circuit Court of Appeals and which reflects the correct outcome of the issue at hand. It is your and the EFF's over reaching of interpretation of the decision that is "far reaching", not the Ninth Circuit Court. Fortunately, hundreds of thousands of writers, authors, artists and photographers are praising the decision in support of the rights of intellectual property owners who wish to be able to successfully use the Internet for their own business pursuits.

I invite you to review the facts of my case at (Kelly Wins In Kelly v Arriba Soft ) and my brief, prepared by some of the sharpest legal minds in the business, Charles Ossola and Jule Sigall, Arnold & Porter (based right there in Washington, DC) and Steven L. Krongold, Arter & Hadden, Irvine, California, located at Plaintiff's Brief in Kelly v. Arriba Soft [PDF]. Hopefully you might find your way to understand the facts of the case rather than falsely credit me for the intended destruction of what Al Gore claims to have invented? Wasn't he in Washington when he made the claim? Maybe the three of us could "do lunch" in Georgetown and sort all of this out if you and Al are available?

Or, if not lunch, perhaps we could read together the copyright notice that appears in your highly acclaimed "ANATOMY OF A MIRACLE: THE END OF APARTHEID AND THE BIRTH OF THE NEW SOUTH AFRICA" (Patti Waldmeir. New York: W. W. Norton, 1997) We could then compare that statement with the statements that appear with my own intellectual properties found in numerous books and on my websites and those of millions of other copyright owners from around the world. This might prove more interesting that any lunch in Georgetown!

Sincerely yours,

Leslie A. Kelly
Plaintiff, Kelly v Arriba Soft, Inc.
President
Les Kelly Enterprises
http://netcopyrightlaw.com

 
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Related Links
· Financial Times
· In-line Linking Illegal Says 9th Circuit
· A ruling that robs the public domain
· decision
· Electronic Frontier Foundation
· ditto.com
· EFF "Intellectual Property Online - Linking, Framing & Inlining - Kelly v. Arriba Soft Corp./Ditto.com" Archive
· EFF Defends Internet Linking - Asks Court to Rehear Ditto.com Case
· Bag and Baggage
· Fair Use Parameters For Deep Linking
· Mr. Les Kelly
· ARTICLE
· EFF Defends Internet Linking - Asks Court to Rehear Ditto.com Case
· EFF Amicus Curiae
· 
Plaintiff's Brief in Kelly v. Arriba Soft
· 
http://netcopyrightlaw.com
· More about Copyright
· News by Ernest Miller


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"User's Login" | Login/Create an Account | 4 comments
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Re: Kelly v. Arriba Soft - The Phantom Menace? (Score: 1)
by greglas on Friday, April 12 @ 12:47:03 EDT
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The problem with Kelly is that it effectively outlaws a certain type of linking -- I don't think it is really clear exactly what kind of linking it is outlawing, but let's say it is "inline" linking. In other words, on its facts, Kelly seems be limited to outlawing a page with a link that "imports" and "displays" image X from site X "on" page Y "on" site Y. (The quotes indicate my profound skepticism of all the psuedo-geography, which doesn't have much to do with the actual technology.)

My (concern/worry) about this is 1) as your post points out, many people don't seem to understand exactly how or, more importantly, why an "inline" or "direct" link is substantially different than a conventional link -- so people might think it is no longer legal to link at all. This is bad because popular perceptions (especially when shared by lawyers) shape norms and practices, and norms and practices can easily shape an unstable area of law.

The second point, as the EFF brief points out, is that it is very difficult to maintain these distinctions between different kinds of links. Basically, there are files on servers connected to the Net, and a link requests a download of a given file. The "inline link" is something that is peculiar to HTML coding and web browsers. Should copyright infringement really depend on your browser and HTML conventions?

Kelly v. ArribaSoft is the Phantom Menace, in the sense that it is a fascinating topic and a very disappointing result -- hopefully it anticipates some high profile (and better) sequels.

(p.s. Remember, also, that the flip side of Kelly is that making thumbnails images can be a transformative use -- who would have guessed that?)


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