|NMU||NINTH CIRCUIT||Copyrights & Trademarks||Feb 11, 2002|
Court finds company’s links violated copyright law
- The 9th U.S. Circuit Court of Appeals determined that a software company violated a photographer’s exclusive rights to his work by importing entire images onto its Web site through “inline linking” and “framing.”
The U.S. Court of Appeals in San Francisco (9th Cir.) ruled that a software company violated the fair-use doctrine by “linking” photographs from another Web site and displaying them in their entirety on the company’s search engine.
The appellate court ruled on Feb. 7 that a software company violated a photographer’s exclusive rights to publicly display his works. In its decision, the court also added that this was the first case ever to address the issue of copyright infringement on the Internet involving “inline linking” and “framing.”
Arriba Software Corp. operates a search engine that displays its results in the form of small pictures or “thumbnails.” Les Kelly, a professional photographer and owner of the Web site showmethegold.com, sued Arriba for showing full-sized versions of Kelly’s photos on its site.
A federal district court ruled that neither form violated the fair-use doctrine. But the appellate court overturned the portion of the ruling pertaining to the display of the full-sized images, saying the company was using Kelly’s images without permission.
In addition, the court took exception to the software company’s use of “inline linking” whereby an image from one Web site is directly imported onto another site and “framed,” or placed within the context of the secondary Web site. In other words, the images taken from the original site are surrounded by the host site’s text and advertising so that “the user typically would not realize that the image actually resided on another Web site,” the court said.
Judge Thomas G. Nelson stated that, unlike the thumbnails, a full-sized picture doesn’t enhance Arriba’s search engine. If a user is only looking for images, he or she can simply download the pictures from the search engine without going to Kelly’s Web site. Nelson said the display of full-sized photos harms Kelly’s markets because he uses the images to attract advertisers and buyers to his site.
Kelly said the thumbnail issue was not part of his original suit but was made an issue by the district judge. He said he thought the thumbnails served as a useful search tool. The issue, he said, was the full-sized images.
Nelson agreed: “By allowing the public to view Kelly’s copyrighted works while visiting Arriba’s web site, Arriba created a public display of Kelly’s works.”
Kelly says that he is “extremely happy” with the ruling, and feels that his victory is a victory for copyright owners worldwide.
(Kelly v. Arriba Soft Corp.) — KC
© 2002 The Reporters Committee for Freedom of the Press