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Kelly v. Arriba Soft Corporation (280 F.3d 934 (CA9 2002) withdrawn, re-filed at 311 F.3d 811(CA9 2003)) is a U.S. court case between a commercial photographer and a search engine company.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, which is operating a search engine as Ditto.com. Image File history File links Broom_icon. ...
It appears that US search engines may use thumbnails of images (size limits not determined) and the issue of inline linking to full size images instead of going to the original site is unclear. Caution suggests obtaining legal advice; linking to the original site in its own window appears a safe choice; with requesting permission remaining the most prudent course of action. The ThumbsPlus image file manager showing folder tree in the upper left and 12 thumbnail-size images to the right. ...
This article or section does not cite its references or sources. ...
Facts
The plaintiff sold pictures to various publications. The defendant ran a search engine on which plaintiff Kelly's pictures appeared as thumbnails. Clicking on the thumbnails would connect with Kelly's website and display the full picture in a new web browser window. The full picture was not stored in Arriba's system, but would nevertheless be displayed on the user's screen as a "thumbnail" in a frame environment provided by Arriba. Kelly sued Arriba for copyright infringement. A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ...
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ...
This article is about search engines. ...
An example of a web browser (Internet Explorer), displaying the English Wikipedia main page. ...
The ThumbsPlus image file manager showing folder tree in the upper left and 12 thumbnail-size images to the right. ...
Case history In 2002 the Ninth Circuit United States Court of Appeals in San Francisco, California overturned a lower court summary judgment ruling in favor of the defendant, holding that: The U.S. Court of Appeals for the Ninth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts: District of Alaska District of Arizona Central District of California Eastern District of California Northern District of California Southern District of California District of Hawaii...
The United States courts of appeals (or circuit courts) are the mid-level appellate courts of the United States federal court system. ...
“San Francisco†redirects here. ...
Summary judgment is a legal term which means that a court has made a determination (a judgment) without a full trial. ...
- The thumbnails were fair use, 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. For fair use in trademark law, see Fair use (US trademark law). ...
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)[1] is the 188th day of the year (189th in leap years) in the Gregorian calendar. ...
Year 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...
On one of his web sites [2] Kelly says that after failure to reach a settlement, default judgment in his favor was obtained on the remaining issues on March 18, 2004. Default 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. ...
is the 77th day of the year (78th in leap years) in the Gregorian calendar. ...
Year 2004 (MMIV) was a leap year starting on Thursday of the Gregorian calendar. ...
"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." [3]
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.[4]
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."[5]
See also The following is a list of cases that deal with issues of concern to copyright in various jurisdictions. ...
External links - Court documents from Electronic Frontier Foundation
- NetCopyrightLaw — Analysis of the case on the Website for Leslie Kelly's consulting services
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