Internet Search engines Face Infringement Claims

Several months after their debut, Internet search engines that help Web users find pictures in cyberspace are winding up in court on copyright infringement charges. Photographer Leslie Kelly of Huntington Beach, California, has sued Arriba Tech of Naperville, Illinois, alleging that its Arriba Vista photo search engine has violated his copyrights.

Other photographers are threatening action against Arriba Vista and another search engine, AltaVista's AV Photo Finder, owned by Compaq Computer Corporation of Houston. The photographers say that the two search engines are engaging in systematic infringement by transmitting images from Web sites all over the Internet without permission.

Those who sue will be waging a difficult battle on untested legal ground. Both companies deny that they're violating copyright law. Neither side is sure how courts will apply recent changes in copyright law to new search-engine technology. And photographers are up against a tough question: What's the damage caused by search engines that help image users find pictures and their owners on the Web?

Alta Vista's AV Photo Finder, accessible through Alta Vista's home page at www.altavista.com, and Arriba Vista at www.arribavista.com, operate in similar ways. Both prompt users to type in keyword descriptions of the images they are seeking. The search engines then post a series of thumbnail images that match the keywords. By clicking on any thumbnail, users can go to the Web site where the image originates, and view a full-size version.

In the wake of complaints from photographers, both search engines have recently added prominent notices warning users to seek permission from the image's owners before using the pictures. They're also blocking Web sites belonging to people who object. But those measures don't assuage Kelly, for one.

"They're copying images from my Web site without permission," says Kelly, whose site was excluded from Arriba Vista searches as soon as he filed a notice of infringement. Kelly demanded payment for the unauthorized use of his images, and ended up suing after Arriba Tech refused to pay. Another photographer, Stephen R. Brown of Washington, D.C., is threatening to sue Alta Vista. "They're infringing copyright," he says. "There are no two ways about it. Anybody who lets it go is a fool."

Brown says Alta Vista has damaged him by taking images from his site without permission, resizing them and obscuring copyright information. In addition, he says, Alta Vista is profiting from his work because it displays banner advertising with his thumbnail images. And, Brown alleges, Alta Vista is using his images to help funnel its search engine users to the Corbis image collection-which pays Alta Vista for that link.

According to ASMP attorney Victor Perlman, the search engines "are doing at least one of the following in violation of copyright law: copying, transmitting, making a public display or making a derivative work without permission." He also alleges that Alta Vista is violating the law by removing identifying information from the thumbnail images.

Both companies dismiss the accusations. "There are several reasons why we're allowed [to legally operate the AV Photo Finder], but our core reliance is on Fair Use," says Compaq attorney Lou Brucculeri.

The Fair Use doctrine is that section of the copyright act that allows for the use of copyrighted works without the copyright holder's permission, within certain limits. It applies primarily to editorial and educational uses. The AV Photo Finder, with its banner ads, is arguably a commercial enterprise.

"That's not a fact that on its face would benefit us," Brucculeri admits, "but that wouldn't proscribe our use [of images] as a Fair Use." He adds, "We're not interfering with [photographers'] markets at all." (In determining whether an infringement is a Fair Use, one factor courts consider is whether the use undermines the copyright holder's market for the work.)

Arriba Tech's defense, meanwhile, rests upon a provision of the Digital Millennium Copyright Act, which "provides latitude [for unauthorized copying] for Internet search services," asserts chief operating officer John Zurawski. The DMCA, which addresses copyright law as it applies to new technology, went into effect last October. Zurawski admits that the new law's wording is vague, but says, "We believe we're operating within the limits of the law."

Among the DMCA's provisions is a new rule limiting liability of service providers and search engines "for the acts of referring or linking users to a site that contains infringing materials-as long as the search-engine provider removes or blocks access to the material upon notification of the infringement."

That rule doesn't allow the search engine to do the infringing, though. But some observers believe Arriba Vista and Alta Vista are laying the groundwork to get courts to interpret the so-called "notice and takedown" protection very broadly. For instance, both search engines have posted information to help photographers who want their images excluded from searches, and they promptly sever links to Web sites of those photographers who complain.

"They're trying to come up with defenses that make them look reasonable, in the event that someone tests them in court," says New York attorney Nancy Wolff.

"We're not going to agree or disagree with that," says Compaq's Brucculeri. Wolff believes the strategy has a chance of working, even though she thinks the search engines are technically violating photographers' copyrights. "The courts might be hesitant to impede technology," she says. Another difficulty that photographers face in court is in proving damages, says Wolff. "An argument can be made that these search engines promote photographers by leading searchers to their work," she says. Perlman, the ASMP attorney, adds, "There are damages, but my feeling is that the damages are fairly minimal." In any case, he doesn't think they're worth the cost of filing a federal copyright claim. (ASMP is pressing Alta Vista to post credits with the thumbnails, though.)

Wolff and others predict that technology, rather than the courts, will provide relief for photographers who object to the photo search engines. "There's going to be so much technology to hunt for information on the Internet, and counter technology to say 'Don't find this.'"

Boston photographer Seth Resnick, who ordered Arriba Tech to exclude his Web site from Arriba Vista searches, says technical fixes already exist. Photographers can easily duck the search engines by using image file names and tags that aren't descriptive, he explains. "I make up weird names," he says. "Search engines are programmed poorly and they do crappy searches. If they find your images, it's your own fault."


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This article originally appeared on the site on the 01.Jun.1999 update.
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