174 AOL FINED IN PURCELL CASE
October 2, 1998
Carl and Ann Purcell have won an initial round in their $5 million
copyright infringement suit against AOL that is scheduled to go to trial in
U.S. District Court in San Francisco on November 16th. America Online has
been fined $20,050 for failing to provide legitimate information and
thwarting the discovery process.
In August 1997, Carl and Ann Purcell filed suit against AOL charging that
AOL had allowed more than 18,500 uncontrolled and unauthorized downloads of
the Purcell images.
The Purcells had operated a forum on AOL between 1994 and 1997. It was
summarily terminated by AOL on June 30, 1997, but AOL continued to allow
unrestricted use of the images after the termination. More than 8,000
images were available on the AOL site. It is unclear how many different
images were downloaded. In addition, after the termination they
discovered that 742 of their images
had been included, without their permission, in another AOL area that
offered developers of Web sites free clip art.
In the past the Purcell's have been able to license rights to their images
for as much as $15,000 when they could guarantee exclusivity to the buyer.
Now that many of their best images have been placed in the public domain
none of them can be offered for exclusive use in the future. Any of those
people who downloaded the images while they were available on AOL might
decide at any time in the future to use them, and the Purcell's have no
control over those uses.
In his order relating to the discovery process, U.S. Magistrate Judge,
James Larson said,
"This sanction goes beyond the mere expenses of filing a motion, as
elsewhere provided in Rule 37, and includes the costs of the lengthy
wrangling necessitated by AOL's deliberately obstructive tactics and
frivolous objections. Not only is AOL's conduct unjustified, but it has
already taken up the time of one other magistrate judge, who previously
warned counsel about improper objections to deposition questions."
"AOL has indulged itself in treating discovery as a game, rather than a
means to progress toward a fair trial. By requesting an extension of time
to respond to discovery and then serving not one single response, but only
blanket objections, AOL violated both the spirit and the letter of the
rules governing discovery."
"By re-working plaintiff's discovery requests to suit itself and then
responding to the new requests, AOL has stretched the rules to the breaking
"By objecting to almost every question during days of depositions of
several different individuals, requiring the intervention of another
magistrate judge, AOL has unjustifiably taxed the court's resources."
According to Carl, AOL has claimed that "by uploading images into our
forum, we had abandoned our copyright and they now owned our pictures."
The Purcells had a contractual agreement with AOL that specifically said
they retained the copyright to all images they placed on their forum. In
addition the rules for access to their forum clearly stated that the
images were only allowed to be used for "personal non-commercial" use.
This language enabled the Purcell's to continue to license exclusive
commercial use to any of the images that appeared on the site. When AOL
made these images available, without restrictions, it appropriated a huge
potential value that these images might have had in the future. This
case could establish important precedents for creators when dealing
with Internet providers.
AOL has recently countersued the Purcell's for trademark infringement. The
Purcell's acknowledge that they initially forgot to remove the AOL
reference from their web site (www.purcellteam.com), but deleted it as soon
as the matter was brought to their attention.
Purcell's attorney, Karl Olson of Levy, Ram & Olson in San Francisco said
AOL wasn't hurt by the Purcell's "inadvertent" continued use of its name.
The Purcell's have an archive of over 670,000 capitioned color slides shot
in 98 countries, and their photos have appeared on 200 book and magazine
coveres. The couple run a company called Words and Pictures. Their images
are also available on Corbis and PictureQuest (PNI's network).
For more information about this case see
stories 83 Purcell's Dumped by AOL
and 100 Purcell & AOL - Update.
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Rules for supplying feedback
What amazes me is that there was any image traffic involving aol. We have
never been able to send JPEGs to clients with an aol.com e-mail address.
The combersome aol system is such a pain, and so limited in so many ways,
why does anyone in the creative community use it?