John Kozubik - john@kozubik.com - http://www.kozubik.com After I wrote my response to the Les Kelly vs. Arriba Soft Corp. court of appeals decision, I forwarded it to Les Kelly himself to solicit his comments - I genuinely wished to understand his point of view and see what he thought of my own comments. Les Kelly kindly sent me a reasoned response, which I then responded to once more. This was the extent of our communication. Those two pieces of email correspondence are below. ---------- Date: Mon, 11 Feb 2002 21:01:24 -0800 From: Leslie A. Kelly To: John Kozubik Subject: Re: a response to your recent court victory John, thanks for your note. I read it earlier and fired off a short, curt response with only a cursory review from which I perceived the same mindset as one Dr. Henry Gladney who has been highly critical of my approach to Net Copyright Law. After taking time to relax, and with wine glass (heart medication, actually) in hand, I have read your note again and realize that your approach is not at all like my first take. Even though my mindset remains the same, I can now understand your points so well stated. For most of us who create IP, and your bio indicates a very high level of such activity, there is the on going concern about theft of images from the Net. I, along with a lot of other people, do not believe that the burden of protection should be no more than a simple copyright statement or a TOS. Arriba Soft intended to sell more than US$149 million of its Arriba Express by offering up my images, and some 6 million images belonging to others, for its customers to use in their own database. None of these images were used with permission and here they were, offered as if they belonged to Arriba Soft; deep linked and framed, to appear as if they were there courtesy of Arriba Soft. It was their burden to not make commercial use of my images, not my burden to waste money attempting to shelter my images for a rogue spider. Your thoughts are intelligent and, while I can see your point, I just don't see why I should have to do anything technical to keep others from stealing my images for their own commercial purposes. I cannot grasp the need to add measures beyond the traditional to let others or a machine know that they are stealing my property. It makes sense to you. I doesn't make sense to me. And, of course, I always fall back on the fact that US Copyright Law which predates the Net does not, even with the Digital Millennium Copyright Act, have any mechanical requirements such as what you suggest. Perhaps later in this century or the next. For now, Kelly v Arriba Soft, Inc., regardless of your well reasoned approach to the issue, sets the rules for this Century. And, so as you so accurately noted in your original note to me, I do disagree with you on this matter. I do deeply respect your role in helping to develop Yahoo and the Net and making it useful to everyone who has a need for or interest in its use. I do most sincerely appreciate the fact that you have taken time from your busy schedule to write to me. With best regards, Les. ---------- Date: Tue, 12 Feb 2002 00:34:26 -0800 (PST) From: John Kozubik To: Leslie A. Kelly Subject: Re: a response to your recent court victory Thank you for your thoughtful and informative response. I am going to put forth a few more comments, but in general I must concede that I see your point and that it is a reasonable one. I believe that we have reached an impasse - I place a higher value on streamlined and minimal application of the law relative to the easement of burdens of protection on copyright holders themselves. You hold the opposite view: > Even though my mindset remains the same, I can now understand your > points so well stated. For most of us who create IP, and your bio > indicates a very high level of such activity, there is the on going > concern about theft of images from the Net. I, along with a lot of other > people, (believe) that the burden of protection should be no more > than a simple copyright statement or a TOS. Arriba Soft intended to sell (snip) > Your thoughts are intelligent and, while I can see your point, I just > don't see why I should have to do anything technical to keep others from > stealing my images for their own commercial purposes. I cannot grasp the Your point is well taken. I have always considered behavior in which third parties deep-link and frame images so as to represent them as their own as reprehensible. Up to this point, I must admit I thought it was reprehensible simply because it used the bandwidth of the original site to support the customers of the third party (which many times has much greater traffic) however I would also consider it reprehensible based on the copyright violation alone. It is my opinion, however, that not all reprehensible actions should be made illegal - not because of some derivative side-benefit that we might be missing, but because sometimes these laws are effective only in some limited sense - as I pointed out in my commentary, the way that web browsers follow links is not necessarily a fixed piece of the landscape. I thought that I would spare you a recap of the somewhat absurd _possible_ web browser behaviors that could circumvent the precedent that your case has produced, but on second thought, these possible behaviors may not be all that absurd after all. The idea that a web browser could simply read human english text descriptions of a pictures location on a web site, and then display it as if it were an inline link, is not that unbelievable. Combine the grammar checking of Microsoft Word with Internet Explorer and throw in a dash of natural language processing...now who is at fault, and what ammendments or new precedents in law will have to be put in place to deal with this? Is the third party web site operator at fault for (albeit deviously) simply writing an english sentence on his web site? Is the writer of the web browser software that allows this odd behavior at fault? I'll get back to the real world now. In the real world, these possible web browsers will probably never exist. In the real world, the court might as well treat browser behavior as a fixed piece of the legal landscape, because the de facto standards that govern such a thing have settled somewhat. However, I still feel anxiety over the fact that the precedent you have helped to create, although relieving copyright holders of a never ending spiral of technical protections that will be defeated and fortified and defeated and fortified, now places the legal system in an equally distasteful position of a (potential) never ending spiral of legal fortifications. It is my personal value judgement that, given a choice of who should get stuck in never ending spirals, I would always choose a small group of individual citizens over the legal machinery itself. Maybe, I admit, because I am not a member of that small group of citizens. You point out correctly that I produce a fair amount of intellectual property, but in fact, all of it up to this point has been released into the public domain. > I do most sincerely appreciate the fact that you have taken time from > your busy schedule to write to me. And I you. It pleases me greatly to find that the difference between our stances on this issue boils down to a simple value judgment, and not to a failure in logic or reason on either of our parts. The difference exists though - the article I wrote was picked up by slashdot and some mailing lists - if further writing on my view is solicited, I will probably give it. However, I am happy to see from this short correspondence that any disagreement we continue to hold on this matter "will not stand between us as men". Thank you, John