The Dumbest Lawsuit in Web History

Remember a few months ago we told you of the U.S. district judge who ordered the removal of links from web sites, essentially declaring the web illegal?

The latest twist is an attempt to make search engines illegal. That’s the goal of Huntington Beach, Calif., photographer Leslie A. Kelly, who is pursuing a case against ditto.com because he insists the search engine is stealing his pictures. Let me back up a minute and explain this one. Kelly’s business is taking pictures evocative of the Old West, which he offers on two web sites. The idea is to sell prints of these pictures (and others) in book form.

Ditto, like Altavista and Lycos, indexes photos and offers a search engine for them. When you search ditto.com for pictures of the California gold rush you get 86 hits, and the following disclaimer at the bottom of each page of ten: “Should you wish to use any picture, photo or artwork you see during the search process, you must obtain the appropriate permission from the owner of the material.”

This is apparently not good enough for Mr. Kelly. He says ditto “mishandled” his work. He says they should have paid him. He lost in the District Court, and has appealed to the U.S. Ninth Circuit Court of Appeals, aided by a $10,000 contribution from the Graphics Art Guild Foundation in New York, whose web site is, oddly, located at gag.org.

What makes this suit so stupid is there are many things Mr. Kelly could have done to protect his pictures. For example, he could have put them behind a firewall – search engines don’t like going behind firewalls – or at least behind password protection. Or he could have just mentioned his pictures without posting them – I recently bought a picture of my family castle sight-unseen.

If Kelly still wanted to put pictures on the public web, he still had lots of choices. He could have used a digital watermark like Digimarc or a system the Air Force is seeking to patent. There are already several patents in this area.

If Kelly didn’t like the Air Force for some reason, IBM has a page for him to look at. FlashPix from Kodak also supports digital watermarks, developed by the folks at LivePicture.

The point is that when it’s so simple to protect your stuff, leaving it unprotected on the public web – then filing suit when someone looks at it – is like leaving your house unlocked and then suing the neighbor whose cat lapped up the milk on your kitchen floor.

If Mr. Kelly doesn’t want his pictures indexed, there are plenty of ways for him to hide them. But if he’s going to leave them in plain view, unprotected, he shouldn’t be shocked that someone might want to look at them. You can’t at the same time post your stuff in a public place and ignore tools for securing them.

If you don’t like the way the web works, in other words, don’t put your stuff on a web site.

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