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David Green can’t seem to escape the bad guys. He put himself through college working as a fraud investigator, helping police bust dozens of counterfeiters. He tracked down the gang that stole credit cards from, among others, David “Kung Fu” Carradine (earning a “very good, grasshopper” from the actor). After getting shot by a stun gun during one arrest, Green opted for “more stable and safe” work, he says. These days Green, 35, isn’t out in the field, but he’s still on the hunt. As corporate counsel at Corbis, the Seattle-based licenser of photographs, illustrations, and fine art, Green spearheads the antipiracy program, tracking down those who use Corbis images without a license, and settling the score. Right now, Green has filed or is in the process of filing 26 copyright infringement lawsuits. This summer, the company brought its highest profile suit yet, against online �ber-retailer Amazon.com and 25 codefendants who, Corbis alleges, have sold pirated celebrity posters through Amazon’s site. A whopping 120 other cases are under investigation. What makes Green such an efficient � and prolific � enforcer is some nifty technology that lets Corbis track the 3 million images it has digitized for sale and use online. (The company controls over 70 million images in total, culled from Corbis’s own archives, as well as images it manages for independent photographers.) Corbis’s hypervigilant monitoring has certainly helped fill its coffers. Earlier this year Corbis collected $1 million in a settlement with The Movie Market, an online movie memorabilia store. That’s no drop in the bucket for a company with an estimated $100 million in revenue in 2002. The antipiracy technology plays another role, too. It’s a sales tool. In many cases when infringement is discovered, the thinking at Corbis is, make the infringer a customer, not a defendant. “Sometimes it makes better sense to have a sales associate make the call than an attorney,” Green says. It’s no surprise that Corbis is aggressively using technology to protect its IP and maximize its bottom line. For one thing, the company is owned by Bill Gates, giving it not just a high-tech pedigree, but perhaps the high-tech pedigree. Corbis’s CEO and president, Steve Davis, spent five years practicing intellectual property law at Seattle’s Preston Gates & Ellis. And while other media industries � namely the music business � have been wary of the Internet, viewing it as a pirate’s paradise, Corbis has embraced the Web as a highly visible, highly effective distribution channel. It just needed some safeguards. Like the music industry, the stock-photo field has suffered at the hands of infringers. Anyone can go online, click on an image, and save it to their hard drive � whether they’ve paid for a license or not. Green estimates that revenue lost to piracy, for the industry as a whole, will total $450 million to $600 million this year. Since its founding in 1989, Corbis has been seeking ways to keep tabs on its images. In 1996 the company was issued a patent for a technique it developed for embedding digital signatures within visual images � in layman’s terms, a LoJack for digital pictures. A signature, or identifying watermark, is inserted into the image’s digital code, invisible to the eye but detectable by special software. Because the watermark stays with the file, no matter how the image is resized, or where it goes, the image’s owner can see where it’s being used on the Web, and spot unauthorized uses. Yet as handy as digital watermarking appeared back in 1996, it was still a technology-in-progress, a tool that would have to be steadily tweaked and upgraded. That was going to take money and manpower, and Corbis wanted to stay focused on its core business. “You can innovate in-house,” says Green, “but unless you want to invest lots of money, you’re often wise to find a partner to develop and commercialize the technology.” And that’s what Corbis did in 1996, assigning its watermarking patent (and, ultimately, one other) to Digimarc Corporation, a company founded in Tualatin, Oregon, that year by Geoffrey Rhoads, a physicist who had previously worked on telescope and satellite imaging systems. In return, Corbis obtained a license to use Digimarc’s technology at a reduced rate, and began using it in 1998. Corbis, it turns out, was right about all the tweaking that was going to be needed: Digimarc now holds 113 patents on digital watermarking. Using watermarking, Green says his team finds 30�60 commercial infringements each month (instances where a business � not a teenager with a Springsteen fan site � is improperly using an image). Because the watermark can contain transactional information, such as whether an image has been downloaded for a trial evaluation, or for educational use, searches � conducted at Digimarc � can be focused to detect only those images with an “eval” or “edu” tag. Reports list where these images were found, and staff at Corbis determine if an image is being used beyond the evaluation period, or by someone not authorized for educational use. Ideally, information about an image’s terms of use would be wrapped directly onto each image licensed, requiring no manual evaluation. But that technology is not quite here yet, says Green. Many vendors are working on different solutions, and no standard has emerged. As with watermarking, Corbis is hoping to jump-start the process, developing the basic technology it needs in-house and then finding a partner to develop it. CLOSING THE HOLE Corbis is also looking at ways of closing a troubling, if unavoidable, hole in its digital watermarking system: It only works for images that contain a digital watermark. For analog images � posters, postcards, and newspaper photos featuring Corbis-controlled works � it’s useless. And making a nonwatermarked digital copy of an analog image is not exactly rocket science. All an infringer needs to do is take the analog image, crop out any identification that may be present (such as the Corbis name or copyright information), and scan it. The bootleg image can then be posted online or distributed via the Web as easily as any watermarked image. Indeed, this is what Corbis alleges happened in the Amazon case, where the misuse was detected not by Digimarc’s tracking software but by good old-fashioned detective work, using a private investigation firm to find vendors selling unlicensed posters, and then using Internet tools like Google to find where these vendors were selling their wares. DIGITAL FINGERPRINTS To track images lacking watermarks, Corbis is now looking at a second technology. Here, nothing needs to be inserted into the image. Instead, software analyzes an image’s visual features � shape, color, texture, relationship of pixels to each other � and creates a statistical representation of the image, a sort of digital fingerprint. Special Web crawlers then prowl the Internet, looking at images and comparing them to the fingerprint, and flagging any matches. This method of searching can be used for any digital image, whether watermarked or not. But it also requires plenty of labor-intensive follow-up � far more than watermarking. Not surprisingly, Corbis sees fingerprinting as a complement to watermarking, not as a replacement. None of these technologies, however, solve a more fundamental question: how to handle the infringers. Watermarks and fingerprints may provide clear evidence that someone used the images improperly, cutting down on discovery costs and making settlements more likely, but getting the legal department involved, says Green, isn’t always the wisest strategy. While settlements can often result in fees many times what a license would have cost, the defendants aren’t college kids downloading MP3s. Often, they’re sizable businesses with an ongoing need for images and the resources to pay for them. Filing legal documents isn’t always the best way to get their business. “Where we conclude that the infringement was likely innocent or the result of bad conduct by some other party � say the company’s Web developer � we work hard to obtain a proactive result,” says Green. “We’ll charge just the license fee and ask the company to commit to buying images from Corbis.” So far this year, six companies found to be infringing have made such commitments. This strategy not only helps Corbis build its customer base, but also lets Green deploy his legal department � four lawyers, six paralegals, and typically a couple of law students on internships � more efficiently, saving Corbis’s big guns at Seattle’s Lane Powell Spears Lubersky for the most egregious cases. Ironically, the better Corbis gets at tracking images, the less tracking it may have to do. Later this year, Digimarc will release an enterprise version of its software, enabling advertising agencies and other large-scale image users to crawl their own sites and keep tabs on the images they use. “Companies are at risk if their employees are using unlicensed properties,” says Scott Carr, president of Digimarc’s watermarking solutions division. “This keeps the general counsel sure of compliance.” The technology may be new, but the trick is an old one: Scare them into doing the right thing.
This article originally appeared in IP Law & Business, a Corporate Counsel sibling publication.

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