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. Leslie A. Kelly Press Release Alleging Copyright Infringement by Arriba Soft Corporation and the Arriba Vista Search engine, 01.Feb.1999



Contact Leslie A. Kelly at Les Kelly enterprises 15802 Springdale St., Suite 14 Huntington Beach, CA 92649-1765 leskelly@deltanet.com (714) 846-0437

Monday, February 1, 1999.

For the November 10, 1998, launch of the new image search engine, ArribaVista Image Searcher, Arriba Soft Corporation CeO Michael J. Lyons, is quoted in a company press release "We all communicate more effectively through visuals and the Web is an incredibly rich environment for visual exploration. Our mission is to help people easily find the pictures they know they want and help them discover many others they're glad they found along the way."

In an interview in the October 1997 edition of Chicago Software Newspaper, Lyons is quoted as stating, in part, about his four successful career startup operations "I'm as pumped up today as I was when I started my first company because the Net has created a whole new world and the cowboys are back. It is the entrepreneurs who dominate that world right now."

With these quotes as backdrops, James G. O'Neill, Attorney, specializing in Patent, Trademark and Copyright cases, Costa Mesa, California, has sent notice to Arriba Soft Corporation of Naperville, Illinois, and its ArribaVista Image Searcher, alleging copyright infringement on behalf of Leslie A. Kelly of Les Kelly enterprises, Huntington Beach, California. According to Kelly, "The cowboys may be back but this time the Marshals are in town."

Kelly, a photographer and publisher based in Huntington Beach, California, has discovered that copyrighted photography has been copied from his web sites [http://www.showmethegold.com/showme.html and http://www.goldrush1849.com], despite copyright notices, and posted by Arriba Soft Corporation in its new ArribaVista Image Searcher at http://www.arribavista.com. The images have been posted within ArribaVista's web site as individual "jpg" files, with their own distinct image file number and surrounded by banner advertisements, separate and apart from their context within his web sites, in Arriba Soft Corporation's ArribaVista Image Searcher. All copyright management information (CMI) have been removed from the images.

According to Kelly and O'Neill's research, Arriba Soft Corporation launched ArribaVista Image Searcher as part of its overall corporate marketing effort for Arriba express, an image file and storage system and its apparent major product. The system incorporates software with the name of WebVac which will literally "vacuum" all image files from a targeted web site, without regard to ownership of the targeted web sites.

In a review of the software package which retails for $149, PC Magazine Online notes in a review dated January 19, 1999, by Stephen W. Plain, in praise of the software "Arriba express's WebVac feature lets you 'vacuum' all the media assets off any given Web site."

After review of the ArribaVista web site, Kelly concluded that Arriba Soft Corporation's ArribaVista Image Searcher had sought out his images along with approximately five million other images from web sites across the Internet. "Despite copyright notices," according to Kelly, "it appears that ArribaVista 'vacuumed' every one of the images in both of my web sites along with a number of images authorized for use in other web sites. We are alleging that Arriba Soft Corporation infringed my images for its financial gain and for use by its customers and users. Based on copyright statutes and the more recent Millennium Digital Copyright Act, signed into law by President Bill Clinton on October 28, 1998, infringement for profit subjects the violator to damages and the potential for fines of $1,000,000 per violation!" Adds Kelly, "The Millennium Digital Copyright Act adds new terms and conditions that both protect and restrict image use by search engines. In the case of Arriba Soft Corporation, their use of my copyrighted images seems to place them at a very high risk for damages and fines!"

Kelly, whose work has been published in a number of books by HarperCollinsPublishers or self published on the subjects of Laura Ingalls Wilder, the Amish and the California Gold Rush, and published in numerous magazine articles, calendars, business brochures, etc., is deeply concerned about protecting the rights to his photography and artistic creation as well as loss of revenue from the alleged infringement by Arriba Soft Corporation's ArribaVista Image Searcher. Kelly operates two web sites, one under the name of California's Gold Rush Country to support his publishing business and another under the name of Show Me The Gold SM to promote an incentive program licensing business and an incentive and rewards tour business in the California Gold Rush Country. His web sites are listed on the major search engines. Both web sites are clearly marked with copyright and trademark notices.

In the November 10, 1998, Arriba Soft Corporation's press release, say Kelly, "The core purpose of the ArribaVista Image Searcher is apparent." The press release notes, in part, "The digital images from Arriba Vista can automatically be downloaded into the Arriba express media management product by clicking a button located on the Arriba Vista search results page. The combination of Arriba Vista and Arriba express enables users to rapidly capture, view, edit, organize and re-use media files, significantly reducing time and money spent on media creation and management."

Kelly comments, "I am shocked and dismayed to see my images displayed, without copyright management information and without permission, by ArribaVista Image Searcher for use by purchasers of Arriba express from Arriba Soft Corporation and others. It is imperative that search engines honor copyright and trademark laws while in pursuit of offering images to their customers. Opt out, as in the case of Compaq's AltaVista™ AV Photo Finder and now ArribaVista Image Searcher, makes it very difficult for a small company to protect its creative property from piracy while pursuing honest trade on the Internet. It is quite burdensome, financially, for small companies to take appropriate legal action where there are violations by large corporations. Fortunately, traditional copyright law and the new Millennium Digital Copyright Act offer protection and provide penalties for infringement."

Kelly notes that Compaq's AltaVista™ AV Photo Finder, to which O'Neill sent notice of copyright infringement in October 1998, and operates at http://www.altavista.com, and ArribaVista Image Searcher, and operates at http://www.arribavista.com, both store images in their own web sites and assign their own file numbers to the images which they have taken from web sites without prior request or any form of permission. "It appears that they not only have similar names and similar URLs, they seem to operate in the same way," Kelly concludes. "In the case of ArribaVista Image Searcher, however, there is no visible copyright warning of any kind on the search page. There is a copyright statement which can be reached by clicking on Copyright at the bottom of this page. The disclaimer that was in place until Monday, January 25, 1999, dwelled more on 'fair use' than concern about protecting the owners of the infringed images. From midday Monday, in response to criticism about infringement from copyright owners of infringed images, the text was hastily rewritten with contradictory statements about ownership and use. The statement acknowledges that ArribaVista Image Searcher contains images for which it is not the copyright owner but does claim ownership of the entire collection when it states "Arriba Soft Corporation makes no copyright claim to the individual images aggregated on the web site, but does claim copyright ownership in the compilation of images displayed on the web site."

"Given the statements attributed to CeO Lyons, that 'the cowboys are back,' it seems to fit within the style of the organization to claim ownership of intellectual property that it 'vacuumed' from the Web." According to Kelly, "With some five million images in the ArribaVista Image Searcher, none of which have ever been the property of Arriba Soft Corporation, it is a very unique claim, even for a 49er of the gold rush era. Even this year, 1999, on the Sesquicentennial of the California Gold Rush, I don't believe that their claim will hold up in court."

Concludes Kelly, "Whoa there, pardner."

# # # # #

For a demonstration of the ArribaVista Image Searcher, click here >>http://www.arribavista.com<< enter in quotes, "Malakoff Diggins" and press enter. ArribaVista image files display by dragging the mouse arrow over the thumbnail image. For a larger version of a specific image, double click on the image. This "window in window" image is actually the specific .jpg file loaded from http://www.goldrush1849.com. Throughout the process, you will note that there is no copyright management information (CMI) displayed about the owner of the images. There are, of course, banners above each window. If you are unable to access the image noted above, please contact leskelly@deltanet.com and samples which have been preserved of infringed images from the ArribaVista Image Searcher will be e-mailed for your review.

This press release prepared by and distributed by Leslie A. Kelly Les Kelly enterprises 15802 Springdale Street, Suite 14 Huntington Beach, CA 92649-1765 (714) 846-0437 Fax (714) 846-8858 leskelly@deltanet.com http://www.showmethegold.com/showme.html http://www.goldrush1849.com Show Me The Gold SM (Application pending USPTO) Leslie A. Kelly is represented by Legal Counsel James G. O'Neill Attorney at Law 3151 Airway Avenue, Suite K-105 Costa Mesa, CA 92626 (714) 549-8609 Fax (714) 549-8626

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