Macromedia, adult site in copyright flap

In the Internet's latest "David and Goliath" conflict, a giant is claiming copyright infringement over a little guy's cries of censorship.

Macromedia yesterday sent a cease-and-desist letter to Dennis Megarry, the owner and designer of pornography site VisualXTC, claiming that Megarry had violated Macromedia's copyright in pages that used its Flash animation technology.

Megarry and Macromedia attorney Wayne Veatch conferred by telephone last night and Megarry subsequently removed the pages in question. But Megarry is not happy with the outcome and says Macromedia targeted him because of the content of his site.

"If I weren't running an adult site, we wouldn't even be having this conversation," he said.

Macromedia's Veatch declined to comment on the matter.

In his letter to Megarry, Veatch alleged that VisualXTC's Flash animations bore "a substantial similarity (and in many instances identity)" to Macromedia's own animations created with Flash. Veatch cited the use of such features as the fade in and fade out, the "old film scratch" effect, flickers and fades, and the use of other, more specific graphics and effects.

"The degree of similarity...makes it readily apparent that the [VisualXTC] materials were copied from or based upon the Macromedia materials, including without limitation the code for the Macromedia materials."

Megarry said he merely emulated the effects of Macromedia's Flash animation tool from the examples he found on the company's Web site. He denied accessing Macromedia code.

"They have this stuff up on the site to demonstrate what Flash can do," Megarry said. "That's what got me to buy it. Even though my site was animated in the same way, the graphics were different. You could compare the files and see it was drastically different."

But Megarry's Web host, who participated in last night's negotiations between Megarry and Veatch, agreed with Macromedia that there were questionable similarities.

"I can see both sides of this story," said Linda Judd, chief executive of Los Gatos, California-based hosting firm Adult Entertainment Management. "As a designer, I can see that a lot of it did look identical. But from his point of view, on the Internet certain practices are acceptable. If you see an animation you really like, you can use it as long as you change it or give credit for it."

Copying on the Web may be a popularly accepted practice, but that doesn't make it legal, according to attorneys specializing in Internet law.

"You copy, you infringe," said Brent Britton, a partner with Internet intellectual property law firm Britton Silberman & Cervantez. "Anything you create on the Net--whether it's literary work, software, or audiovisual--it is copyrighted from the moment of its creation under the law. Just because you can copy it easily on the Web doesn't mean that you may."

Britton said the Macromedia materials would be subject to copyright protection whether Megarry accessed the source code--as Macromedia suggested and Megarry denied--or even if he just copied from the finished product.

But the law does recognize a distinction between copying and imitation, said Britton, and that's where things get murky.

"If I write Romeo and Juliet and you read it and write West Side Story, they're very similar literary works. You didn't copy any words from me, but you did copy something," he added. "This is where the law gets really difficult."

Britton also said that if Macromedia encouraged Flash developers to emulate what they found on the site, that could complicate the company's claim of copyright infringement.

Megarry cited a passage from a book called Flash! Creative Web Animation, published by Macromedia Press, which reads, "One way to figure out what you might want to do with Flash is to look at what other people have already done, with an eye to examining not just what it looks like but how it was done."

"That's just what I did," said Megarry. "I looked at what they did, and I got in a lot of trouble for it."

Macromedia chairman John Colligan sits on the board of directors of NEWS.COM publisher CNET: The Computer Network.