Kelly v. Arriba Soft Corp.
District Court: 77 F. Supp. 2d 1116 (C.D. Cal. 1999)
Arriba Soft, later known as ditto.com, operated a visual search engine that allowed users to search for photographs. Id. at 1117. The search engine displayed thumbnail copies of each photo. When a user clicked on the thumbnail image, the search engine produced an Images Attributes page, which displayed the original full-sized image directly from the originating website along with a link to the originating site. Photographer Leslie Kelly sued for infringement of his copyrighted photographs and violation of section 1202 of the DMCA governing the "integrity of copyright management information." Id.
Arriba Soft moved for summary judgment and the District Court ruled in Arriba Soft's favor on both claims. The Court found the thumbnails to be fair use after applying the four factors. Id. at 1118. While the Court found the use to be commercial because Arriba Soft operated its search engine for commercial purposes, it also noted that the copying of Kelly's photographs was neither explotive nor significant for Arriba Soft's commercial purposes. Furthermore, the Court determined that Arriba Soft's purpose of indexing images for better search results was transformative because it differed substantially from Kelly's artistic purposes. Id. at 1119. The Court found the nature and amount factors to weigh against fair use because Kelly's work was artistic and Arriba Soft did not need to display full images outside the context of the original webpage along with the image attributes to serve its purposes. Id. at 1120. Finally, the Court found there was no evidence of market harm. Id. at 1121.
The Court also ruled that Arriba Soft did not violate DMCA 1202 because there was no evidence Arriba Soft intentionally removed copyright management information by displaying the images outside the context of the copyright information on the original webpages or that Arriba Soft knew or should have known that displaying images this way would lead to infringement. Id. at 1122.
On Appeal - Withdrawn Opinion: 280 F.3d 934 (9th Cir. 2002)
In its original opinion, the Ninth Circuit affirmed the District Court's finding of fair use as to the thumbnails, but reversed the lower finding of fair use as to the full-sized images and found that Arriba Soft infringed Kelly's public display right. Id. at 938. The Court remanded for a determination of damages and injunctionary relief. Id.
The Court noted that while Arriba Soft created its thumbnails by copying the original full-sized images, it then deleted those copies after creating the thumbnails and only linked to the original in response to searches. Id. Thus, the Court determined that Arriba Soft could not have infringed Kelly's reproduction right because Arriba Soft did not do any copying in 'displaying' full-sized images to users. Id. at 944. The court reasoned that by linking to Kelly's images on Kelly's website, Arriba Soft "displayed" Kelly's original copies and did so in a public manner because the search engine was accessible to the public at large. Id. at 945. The Court found it did not matter there was no evidence anyone had actually viewed any of Kelly's images through Arriba Soft's search engine; the mere availability was enough. Id. at 946.
Revised Ninth Circuit Opinion: 336 F.3d 811 (9th Cir. 2003)
In a new opinion, the Ninth Circuit again held that the copying and display of the thumbnail images was a fair use of the copyrighted works because the use was transformative and less exploitative than more traditional types of commercial uses. Court held that both "[t]he creation of and use of thumbnails in the search engine is a fair use." Id. at 815. However, the Court withdrew its findings regarding the public display right and the full-sized images and found the District Court had improperly ruled on that issue because Kelly had not moved for summary judgment as to the full-sized images, only to the thumbnails, and Arriba Soft had not conceded there was prime facie evidence of infringment as to the full-sized images, only to the thumbnails which were stored on its server. Id. at 816-17.