Kelly v. Arriba Soft Corp.
2003 Cal. Daily Op. Serv. 5888, 336 F.3d 811, 67 U.S.P.Q. 2d (BNA) 1297 (2003)
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Rule of Law:
An internet search engine's creation and display of lower-resolution thumbnail images of copyrighted works for indexing purposes constitute fair use under the Copyright Act due to their transformative nature and minimal market harm, but the direct display of full-sized images via in-line linking is a separate issue requiring its own fair use analysis.
Facts:
- Leslie Kelly, a professional photographer, held copyrights for numerous images of the American West, some of which were hosted on his website or other licensed sites.
- Arriba Soft Corp. operated an internet search engine that indexed images and displayed search results as small pictures, known as "thumbnails."
- Arriba's computer program "crawled" the internet, downloaded full-sized copies of images, generated lower-resolution thumbnails, and then deleted the full-sized originals from its server.
- From January to June 1999, Arriba's search engine, when a user clicked a thumbnail, displayed an "Images Attributes" page that used in-line linking to show the original full-sized image from its source website, alongside Arriba's own content.
- In January 1999, Arriba's crawler copied thirty-five of Kelly's copyrighted images into its database without his permission.
- Upon discovering Arriba's use of his images, Kelly objected to Arriba's actions.
- In response to Kelly's objection, Arriba deleted thumbnails originating from Kelly's own websites and added those sites to a list it would not crawl.
- After Kelly identified further instances of his images from third-party sites in Arriba's database, Arriba deleted those additional thumbnails and blocked crawling of those third-party sites.
Procedural Posture:
- Leslie Kelly initiated a lawsuit against Arriba Soft Corp. in federal district court, alleging copyright infringement.
- Kelly filed a motion for partial summary judgment, contending that Arriba's use of thumbnail images infringed his display, reproduction, and distribution rights.
- Arriba cross-moved for summary judgment, conceding a prima facie case of infringement regarding the reproduction and display of thumbnail images only, but asserting that its use constituted fair use.
- The district court granted summary judgment for Arriba, concluding that Arriba's use of both thumbnail images and the full-sized images was fair use, extending its ruling beyond the scope of the parties' motions and Arriba's concession.
- Kelly appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does an internet search engine's reproduction of copyrighted images to create and display lower-resolution thumbnail versions, and its in-line linking to display the original full-sized images, constitute fair use under Section 107 of the Copyright Act?
Opinions:
Majority - T.G. Nelson
Yes, an internet search engine's reproduction of copyrighted images to create and display lower-resolution thumbnail versions constitutes fair use. However, the district court should not have decided whether the display of the larger image by in-line linking was fair use, as this issue was not properly before it. The Ninth Circuit applied the four fair use factors under 17 U.S.C. § 107: 1. Purpose and character of the use: This factor weighed slightly in favor of Arriba. Although Arriba's use was commercial, it was deemed "incidental and less exploitative" than traditional commercial uses. More importantly, Arriba's use of the thumbnails was highly "transformative." Kelly's original images are artistic works intended for aesthetic enjoyment, while Arriba's thumbnails serve an entirely different function: improving access to information on the internet by acting as a visual index. The low resolution of the thumbnails makes them unsuitable as substitutes for the originals for aesthetic or display purposes, thereby creating a new purpose for the images. 2. Nature of the copyrighted work: This factor weighed slightly in favor of Kelly. Kelly's photographs are creative works, which are closer to the core of copyright protection. However, they were published on the internet, which generally makes them more amenable to fair use than unpublished works. 3. Amount and substantiality of the portion used: This factor was neutral. Arriba copied entire images, but this was deemed reasonable and necessary to allow users to recognize the image and determine whether to pursue more information. Copying only a part would reduce the usefulness of the visual search engine. 4. Effect of the use upon the potential market for or value of the copyrighted work: This factor weighed in favor of Arriba. The thumbnails do not harm the market for Kelly's images. Instead, by guiding users to Kelly's website, the search engine could potentially increase traffic. The low resolution prevents the thumbnails from being substitutes for the full-sized images, as they lose clarity upon enlargement, and Arriba does not sell or license the thumbnails. Balancing these factors, the court concluded that the transformative nature and public benefit of the search engine, coupled with minimal market harm, made the creation and use of thumbnails a fair use. However, the court reversed the district court's decision regarding the full-size images because the district court improperly broadened the scope of the summary judgment motions and Arriba's concession, as neither party had moved for summary judgment on the full-size images nor had Arriba conceded a prima facie case of infringement for them. The issue of in-line linking to full-sized images was therefore remanded for further proceedings.
Analysis:
This case significantly shaped the application of copyright law to internet search engines, establishing that creating and displaying low-resolution thumbnails for indexing purposes is a transformative fair use. It underscored the importance of the "transformative" nature of a new work in the fair use analysis, particularly when the secondary use serves a distinctly different function from the original. However, the ruling also highlighted that simply linking to full-size copyrighted works, even via in-line linking, is a separate copyright issue that still requires a full fair use analysis, signaling that such practices are not automatically protected. This distinction provided critical guidance for the burgeoning internet economy, balancing copyright holders' rights with the public interest in information access through search technology.
