Advanced Copyright Issues on the Internet - Fenwick & West LLP

users who were exposed to those ads. 2141 In view of the material issues of fact cited by the court,it denied the plaintiffs’ motion for summary judgment. 21429. Kelly v. Arriba SoftOne of the most important linking cases is that of Kelly v. Arriba Soft Corp. 2143case and its significance are discussed in detail in Section II.C.2 above.That10. Batesville Services, Inc. v. Funeral Depot, Inc.In Batesville Services, Inc. v. Funeral Depot, Inc., 2144 the plaintiff Batesville sold casketsand was the owner of the copyrights in a number of advertising photographs used to market itscaskets. The defendant, although not an authorized dealer of Batesville, operated a web site thatsold caskets, including Batesville caskets. The defendant displayed some of Batesville’s casketphotographs on its web site. In response to a cease and desist letter, the defendant removed thephotographs from its web site, but approached the Veterans Society, an authorized Batesvilledealer, and reached an agreement that the defendant would pay the expenses of modifying theVeterans Society web site so that digitized versions of images of Batesville caskets would bedisplayed on the site. The defendant then modified its own web site so that small, low resolutionthumbnail images of Batesville caskets were linked to the appropriate casket pages on theVeterans Society website. When a shopper on the defendant’s site clicked on a thumbnail image,the shopper was linked to a much larger image on a casket page on the Veterans Society website, which in turn displayed the defendant’s phone number. The casket web pages on theVeterans Society site also had a link labeled “Back to Main Gallery” that would return theviewer to the defendant’s web site. 2145The plaintiff contended that both the previous and the modified arrangements violatedtheir copyrights in the photographs in question. The defendant argued, among other things, thatthe Veterans Society, as an authorized Batesville dealer, had an implied license to display thephotographs, and that in any event the use of links on the Internet could never amount tocopyright infringement. Both sides moved for summary judgment. 2146With respect to the implied license argument, the court noted that Batesville had suppliedthe photographs to the Veterans Society as an authorized dealer, and that like any other2141 Id. at *35-36.2142 The court denied a counter-motion for summary judgment filed by MP3Board that its activities of identifyinglinks where information could be found were protected by the First Amendment. The court cited authorityfrom the Second Circuit that the fair use doctrine encompasses all claims under the First Amendment in thecopyright field, and noted that MP3Board had not asserted that its activities constituted fair use, nor could itsucceed on such an assertion under the applicable factors of the fair use doctrine. Id. at *37-40.2143 No. 00-55521 (9 th Cir. Feb. 6, 2002).2144 2004 Copyr. L. Dec. 28,901 (S.D. Ind. 2004).2145 Id. at pp. 37,694-95.2146 Id. at 37,695.- 468 -