Advanced Copyright Issues on the Internet - Fenwick & West LLP

images to allow users to recognize the image and decide whether to pursue more informationabout it or the originating web site. 275Finally, the court held that the fourth factor, the effect of the use upon the potentialmarket for or value of the copyrighted work, weighed in favor of Arriba. The court found thatArriba’s use of the thumbnail images would not harm the market for Kelly’s use of his images orthe value of his images. By displaying the thumbnails, the search engine would guide users toKelly’s web site rather than away from it. Nor would Arriba’s use of the images harm Kelly’sability to sell or license the full-sized images. Anyone downloading the thumbnails would not besuccessful selling full sized-images from them because of the low resolution of the thumbnails,and there would be no way to view, create, or sell clear, full-sized images without going toKelly’s web sites. Accordingly, on balance, the court found fair use. 276The court reversed, however, the district court’s ruling that Arriba’s use of the full-sizedimages through inline linking or framing was a fair use and remanded for further proceedings.The Ninth Circuit’s ruling on this issue was contrary to a result the Ninth Circuit had reached inan earlier opinion in the case issued in 2002, 277 which it withdrew when issuing its 2003 opinion.In the 2002 ruling, the Ninth Circuit had held, in a highly controversial ruling, that Arriba’sinline linking to and framing of the full-sized images violated the plaintiff’s public displayrights. 278 Interestingly, the court ruled that Kelly’s reproduction rights had not been infringed:“This use of Kelly’s images does not entail copying them but, rather, importing them directlyfrom Kelly’s web site. Therefore, it cannot be copyright infringement based on the reproductionof copyrighted works …. Instead, this use of Kelly’s images infringes upon Kelly’s exclusiveright to ‘display the copyrighted work publicly.’” 279 Apparently the court’s observation that theoffering of the full-sized images through linking “does not entail copying” was meant to refer todirect copying by Arriba, because a copy of the images is certainly made in the user’s computerRAM, as well as on the screen, when the user clicks on the thumbnail to display the full sizedimage.With respect to infringement of the display right, the court ruled in its 2002 opinion thatthe mere act of linking to the images constituted infringement. First, the court ruled that therewas an unauthorized “display”: “By inline linking and framing Kelly’s images, Arriba isshowing Kelly’s original works without his permission.” 280 Second, the court held that such“showing” was a “public” one: “A display is public even if there is no proof that any of thepotential recipients was operating his receiving apparatus at the time of the transmission. Bymaking Kelly’s images available on its web site, Arriba is allowing public access to thoseimages. The ability to view those images is unrestricted to anyone with a computer and internet275276277278279280Id. at 820-21.Id. at 821-22.Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002).Kelly had never argued, either in the proceedings below or on appeal, that his public display rights had beeninfringed. The Ninth Circuit raised this issue on its own.Id. at 944.Id. at 945.- 75 -