Advanced Copyright Issues on the Internet - Fenwick & West LLP

access.” 281 The court thus concluded that Arriba had directly infringed Kelly’s public displayrights: “By allowing the public to view Kelly’s copyrighted works while visiting Arriba’s website, Arriba created a public display of Kelly’s works. … Allowing this capability is enough toestablish an infringement; the fact that no one saw the images goes to the issue of damages, notliability.” 282The court went on in its 2002 opinion to hold that Arriba’s display of Kelly’s full-sizedimages was not a fair use. Unlike the case of the thumbnails, the court held that the use of thefull-sized images was not transformative. “Because the full-sized images on Arriba’s site actprimarily as illustrations or artistic expression and the search engine would function the samewithout them, they do not have a purpose different from Kelly’s use of them.” 283 Accordingly,the first factor weighed against fair use. For the same reasons as before, the second factorweighed slightly in favor of Kelly. 284 The third factor weighed in favor of Kelly because,although it was necessary to provide whole images “to suit Arriba’s purpose of giving usersaccess to the full-sized images without having to go to another site, such a purpose is notlegitimate.” 285 Finally, the fourth factor weighed in Kelly’s favor, because “[b]y giving usersaccess to Kelly’s full-sized images on its own web site, Arriba harms all of Kelly’s markets.” 286The Ninth Circuit’s ruling in its 2002 decision on the public display issue generated a lotof controversy, since the reach of that ruling was potentially so broad. In particular, the logic theNinth Circuit adopted in its 2002 decision – that the mere act of inline linking to or framing of awork, whether or not users actually view the linked work – constitutes a public display of thelinked work, could call into question the legality of many types of linking or framing that has notbeen expressly authorized by the owner of the linked material. Apparently in response to thecontroversy, on Oct. 10, 2002, the Ninth Circuit ordered additional briefing on issues of publicdisplay and derivative use rights raised by the case. 287In its 2003 decision, the Ninth Circuit omitted entirely the discussion of the publicdisplay right that had appeared in its 2002 decision. Instead, the court held that the district courtshould not have decided whether the display of the full-sized images violated Kelly’s publicdisplay rights because the parties never moved for summary judgment on that issue. 288 In theproceedings below, Kelly had moved only for summary judgment that Arriba’s use of thethumbnail images violated his display, reproduction and distribution rights. Arriba cross-movedfor summary judgment and, for purposes of the motion, conceded that Kelly had established a281282283284285286287288Id.Id. at 946.Id. at 947.Id. at 947-48.Id. at 948.Id.“Ninth Circuit Orders Added Briefs on Hyperlinking <strong>Issues</strong> in Arriba Soft Appeal,” BNA’s ElectronicCommerce & Law Report (Oct. 30, 2002) at 1082.Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003).- 76 -