Kelly v. Arriba Soft Corporation (280 F.3d 934 (CA9 2002)
withdrawn, re-filed at 336 F.3d 811(CA9 2003)) is a U.S. court case between a commercial photographer and a search engine company. During the case ownership of Arriba Soft changed to Sorceron, the operator of the Internet search engine Ditto.com. The court found that US search engines may use
thumbnailThumbnails are reduced-size versions of pictures, used to help in recognizing and organizing them, serving the same role for images as a normal text index does for words...
s of images (size limits not determined), though the issue of
inline linkingInline linking is the use of a linked object, often an image, from one site into a web page belonging to a second site...
to full size images instead of going to the original site was not resolved.
The
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
sold pictures to various publications from his web site.
Kelly v. Arriba Soft Corporation (280 F.3d 934 (CA9 2002)
withdrawn, re-filed at 336 F.3d 811(CA9 2003)) is a U.S. court case between a commercial photographer and a search engine company. During the case ownership of Arriba Soft changed to Sorceron, the operator of the Internet search engine Ditto.com. The court found that US search engines may use
thumbnailThumbnails are reduced-size versions of pictures, used to help in recognizing and organizing them, serving the same role for images as a normal text index does for words...
s of images (size limits not determined), though the issue of
inline linkingInline linking is the use of a linked object, often an image, from one site into a web page belonging to a second site...
to full size images instead of going to the original site was not resolved.
Facts
The
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
sold pictures to various publications from his web site. The defendants Arriba Soft Inc. and it's CEO Michael J. Lyons ran a earch engine]. Defendant Arriba's search engine indexed pictures from the web so that web users can conduct image search. The search engine returns a set of postage stamp size image thumbnails that relate directly to the specific term searched on. Kelly's pictures appeared as thumbnails on Defendants search engine along with millions of other thumbnail images from all over the web. Clicking on the thumbnails from Kelly's website would connect the user with Kelly's website via a deep link. In addition to the display a postage stamp size thumbnail image the user could also link to the full picture in a new
web browserA web browser is a software application for retrieving, presenting, and traversing information resources on the World Wide Web. An information resource is identified by a Uniform Resource Identifier and may be a web page, image, video, or other piece of content...
window. The thumbnail image was stored on Arriba's system, but the full picture was not stored in Arriba's system. The picture is displayed on the user's screen as a "
thumbnailThumbnails are reduced-size versions of pictures, used to help in recognizing and organizing them, serving the same role for images as a normal text index does for words...
", and if the full picture was linked to by the user then it was presented in a frame environment provided by Arriba. Kelly sued Arriba for copyright infringement for both use of the thumbnail image and use of the full image.
Case history
In 2002 the
Ninth CircuitThe U.S. Court of Appeals for the Ninth Circuit is a U.S. Federal Court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
United States Court of AppealsThe United States courts of appeals are the intermediate appellate courts of the United States federal court system...
in
San Francisco, CaliforniaSan Francisco is the fourth most populous city in California and the 12th most populous city in the United States, with a 2008 estimated population of 808,976. It is the eighth most densely populated city in the U.S. and is the financial, cultural, and transportation center of the larger San...
up held that thumbnails were
fair useFair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another...
, not copyright infringements. It upheld the right of
image search engines to display thumbnail copies of images within their search results, however it did overturned a portion of the lower court
summary judgmentIn law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
ruling in favor of the defendant, holding that:
- The thumbnails were fair use
Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another...
, not copyright infringements. It upheld the right of image search engines to display thumbnail copies of images within their search results so long as the website URL was linked from the thumbnail.
- The in-line links that displayed the full picture were not fair use, so were infringing the exclusive rights of Kelly.
The United States District Court for the Central District of California, Gary L. Taylor, J., 77 F.Supp.2d 1116, granted summary judgment for search engine operator based on finding of fair use, and owner appealed.
On July 7, 2003 the Ninth Circuit modified its initial decision. They let stand the ruling about thumbnails and fair use, but reversed decision on inline links and remanded the case to the District Court for trial because the District Court had made a decision it shouldn't have made at that stage of the proceedings. On denial of rehearing, and withdrawing and superseding its prior opinion, 280 F.3d 934, the Court of Appeals, T.G. Nelson, Circuit Judge, held that operator's use of owner's images as "thumbnails" in its search engine was fair use. 280 F.3d 934 (CA9 2002)
http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20030707_9th_revised_ruling.pdf
On one of his web sites
http://netcopyrightlaw.com/kellyvarribasoft.asp Kelly says that after failure to reach a settlement,
default judgmentDefault judgment is a binding judgment in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. It can be compared to a forfeit victory in sports....
in his favor was obtained on the remaining issues on March 18, 2004. However, at that point the owner of the Arriba search engine (Sourceron Inc.) had gone out of business and there was no one for Kelly to settle with. With no one left to defend the case Kelly managed to get a judgement against Arriba Soft Inc. and entity that no longer existed in any form.
"Judgment shall be entered in favor of Plaintiff LESLIE A. KELLY, and individual and d/b/a LES KELLY PUBLICATIONS, LES KELLY ENTERPRISES, and SHOW ME THE GOLD and against Defendant ARRIBA SOFT CORPORATION, aka DITTO.COM in the sum of $345,000.00, plus reasonable attorney's fees in the sum of $6,068.20. s/Gary L. Taylor, UNITED STATES DISTRICT COURT JUDGE."
http://netcopyrightlaw.com/pdf/kellyvarribasoftjudgement03182004.pdf
Fair use analysis
Each of the courts that reviewed the summary judgment application conducted an analysis of the four factors which are stated in of the United States Copyright Act.
section 107 What follows is the analysis done in the revised Ninth Circuit opinion of July 2003.
http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20030707_9th_revised_ruling.pdf
Purpose and character of the use.
The use was found to be commercial and transformative, not of the same type as the original work, because the images were not being sold as pictures but rather were to facilitate the identification of the images in the search engine: "This first factor weighs in favor of Arriba's due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images".
Nature of the copyrighted work.
The pictures are a published creative work available on the internet. A creative work favors a finding of infringement. As a published work, the use is more likely to be fair: "This factor weighs only slightly in favor of Kelly".
Amount and substantiality of portion used.
The court found this factor to be neutral: "Copying an entire work militates against a finding of fair use ... If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her ... This factor neither weighs for nor against either party ... It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information".
Effect of the use upon the potential market for or value of the copyrighted work.
This requires considering the effect if the actions were widespread, not solely the effect of the particular user. A transformative work is less likely to have an adverse effect than one which merely supersedes the original: "Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images". The thumbnails would guide people to Kelly's work rather than away from it and the size of the thumbnails makes using them instead of the original unattractive.
Result of the analysis
"Having considered the four fair use factors and found that two weigh in favor of Arriba, one is neutral, and one weighs slightly in favor of Kelly, we conclude that Arriba’s use of Kelly’s images as thumbnails in its search engine is a fair use."
http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20030707_9th_revised_ruling.pdf
External links