Chapter 6: Copyright Protection Against
Derivative-Work Versons of Computer
Programs and Web Pages —
Fair Use — Reverse Engineering
B. Hyperlinking and Framing
Whether by historical accident or by destiny, the case-law on hyperlinking and framing has become intertwined. Some decisions have confused them with one another. More recent ones do not, but because framing always involves hyperlinking (although hyperlinking need not involve framing), and because plaintiffs often claim that defendants’ hyperlinking and their framing each violate the plaintiffs’ rights protected under § 106, important recent decisions have addressed the legality of both practices. This section of the materials therefore begins with case-law addressing only hyperlinking, but it soon proceeds to cases in which the plaintiffs complained about both practices.
What is a hyperlink?
Hyperlinks, also termed links or hotlinks, are defined as follows in The Free On-line Dictionary of Computing:
A reference (link) from some point in one hypertext document to (some point in) another document or another place in the same document. A browser usually displays a hyperlink in some distinguishing way, e.g. in a different colour, font or style. When the user activates the link (e.g. by clicking on it with the mouse) the browser will display the target of the link.
Webopedia defines hyperlink as follows:
An element in an electronic document that links to another place in the same document or to an entirely different document. Typically, you click on the hyperlink to follow the link. Hyperlinks are the most essential ingredient of all hypertext systems, including the World Wide Web.
Webopedia defines hypertext as follows:
A special type of database system, invented by Ted Nelson in the 1960s, in which objects (text, pictures, music, programs, and so on) can be creatively linked to each other. When you select [click on] an object, you can see all the other objects that are linked to it. You can move from one object to another even though they might have very different forms. For example, while reading a document about Mozart, you might click on the phrase Violin Concerto in A Major, which could display the written score or perhaps even invoke a recording of the concerto. Clicking on the name Mozart might cause various illustrations of Mozart to appear on the screen. The icons that you select to view associated objects are called Hypertext links or buttons.
Some more hyperlinking terminology and some illustrations of links
This is a link to the home page for Computer Law 484. Select (click on) it and then use the back button at the upper left of the screen to return to this page. Typically, upon your return the color of the link changes (say, from blue to magenta) to show that you have visited that link.
You can see the code of the URL used for that link by placing your cursor over the link. (Look at the status bar below the bottom of the Web page display.) The full HTML code for the link statement above is:
This is a link to the <a href="http://docs.law.gwu.edu/facweb/claw/default.htm">home
page for Computer Law 484</a> Select (click on) it and then use the back...
You can link to somewhere in the middle of a document that has been flagged with an approriate anchor or "A name." For example, the following link takes you to the section of the home page for this course that is captioned “What is this course NOT about?” This kind of link can also be used to toggle between text and endnotes.
The code for this link, viewable by placing your cursor over the link, is:
...captioned <a href="http://docs.law.gwu.edu/facweb/claw/default.htm#whatnot">"What
is this course NOT about?"</a> This kind of link can also be used...
You can also see the HTML code for this page by using the browser's VIEW and Page Source functions. The HTML code for the target of this link is “whatnot” in this case, and it is placed on the target page at the beginning of the targeted section, using the following code:
Most Web sites are organized hierarchically, with a home page at the top and deeper pages within the site, reached by links on the home page. Businesses usually want users to enter their Web sites from the home pages, so that they are exposed to advertising messages. This expectation can be thwarted by so-called deep linking. The term refers to making a hyperlink that takes a user directly to a page other than the top or home page. A deep link to the present page would use the following URL (Web address):
Related issues arise from use of inline links on Web pages. An inline link places material — usually an image such as a Jpeg or Gif — from a distant Web site onto the Web page being viewed. For example, the image at the right is the seal of the U.S. Patent Office, as shown on its home page at its Web site. The URL of the PTO seal image is http://www.uspto.gov/images/uspto_seal_120.gif. You can see the image in its original Web context at http://www.uspto.gov, the PTO home page. The image seems to be present as a part of the GWLS Web page that you are viewing. The presence of the image file (Gif file) is only virtual, however, and the file is not physically present at the GWLS Web site or its server. The actual location of the file is at the PTO server, in Virginia.
Many copyright owners object to this use of images that they have made available for viewing on the Internet. A problem that they have had in suing for copyright infringement stems from the fact that the inline linker does not need to reproduce a copy of the Jpeg or Gif. The inline linker simply writes HTML code that gives a user's browser the URL of the image; the linker does not need to reproduce the image file at the linker's server. If any reproduction at all occurs, it is in the video RAM (and perhaps cache) of the user viewing the inline linker's Web page. The relevant HTML code for this inline link follows:
Further material on linking is available from this link to supplemental course material on linking. The material includes a Scottish decision on deep linking and links to other materials such as demos. Professor Dan Burk wrote an thoughtful and extensive 1998 article on hyperlinking, Proprietary Rights in Hypertext Linkages, but it has been overtaken somewhat by the cases addressed below.
Litigation over deep linking and inline linking was for at least the first five years very inconclusive in the U.S., with hardly any reported decisions. One of the earliest decisions is presented below. The district court denied a motion to dismiss, but then denied a preliminary injunction, without definite resolution of the merits.
Ticketmaster Corp. v. Tickets.Com, Inc.
U.S. District Court, Central District of California
March 27, 2000, and August 10, 2000
March 27, 2000
The motion to dismiss the First Amended Complaint (FAC) made by defendant Tickets.com, Inc., (hereafter Tickets) is ... denied as to claim 1 (copyright infringement) and granted as to claim 2 (breach of contract), with leave to amend.
Both parties have made reference to declarations filed in connection with the forthcoming motion for preliminary injunction. Such matters may not be properly considered on an FRCP 12(b)(6) motion to dismiss the complaint, which limits consideration to matters in the complaint and items of which the court may take judicial notice (none here). However, where an amended complaint has been filed, items pleaded or attached as exhibits to the original complaint may be considered to the extent they contradict assertions in the amended complaint.
The web site of plaintiffs Ticketmaster Corporation and Ticketmaster Online-CitySearch, Inc. (hereafter collectively, in the singular Ticketmaster) operates to allow customers to purchase tickets to various events (concerts, ball games, etc.) through an internet connection with its customers. On the Ticketmaster home page, there are instructions and a directory to subsequent pages (one per event). The event pages provide basic information (short description of the event, date, time, place, and price) and a description of how to order tickets by either internet response, telephone, mail, or in person. Each of these subsequent pages is identifiable with an electronic address. The home page further contains (if a customer scrolls to the bottom) "terms and conditions" which proscribe, among other things, copying for commercial use. However, the customer need not view the terms and conditions to proceed straight to the event page which interests him. Ticketmaster has exclusive agreements with the events it carries on its web pages so that tickets are not generally available to those events except through Ticketmaster (or reserved for sale by the event itself, or available from premium ticket brokers who generally charge higher than face value).
Tickets also operates a web site (Tickets.Com) which performs a somewhat different ticketing service. While Tickets does sell some tickets to certain events on its own, it also provides information as to where and how tickets which it does not sell may be purchased. A short factual description as to event, time, date, place and price is listed. Where Tickets does not itself sell the tickets, a place is given the customers co click for a reference to another ticket broker, or to another on-line ticket seller. Here is where the unique feature of this case -- hyperlinks or deep linking -- comes in. Where the exclusive ticket broker is Ticketmaster, and the customer clicks on "Buy this ticket from another on-line ticketing company", the customer is instantly transferred to the interior web page of Ticketmaster (bypassing the home page) for the particular event in question, where the customer may buy the tickets (from Ticketmaster, not Tickets) on-line. An explanation is generally given by Tickets as follows: "These tickets are sold by another ticketing company. Although we can't sell them to you, the link above will take you directly to the other company's web site where you can purchase them." The interior web page contains the Ticketmaster logo and the customer must know he is dealing with Ticketmaster, not Tickets.
In order to obtain the basic information on Ticketmaster events, Tickets is alleged to copy the interior web pages and extract the basic information (event, place, time, date and price) from them. That information is then placed in Tickets format on its own interior web pages. Tickets no longer (if it once did. as alleged) merely copies the Ticketmaster event page on its own event page. However, by the use of hyper-linking (i.e. electronic transfer to the particularly numbered interior web page of Ticketmaster), the customer is transferred directly to the Ticketmaster interior event page.
The motion to dismiss the first claim (copyright infringement) is denied because the complaint alleges actual copying. Plaintiff claims that the copying includes printing the factual information derived from the Ticketmaster interior web pages. The court does not accept this argument. A copyright may not be claimed to protect factual data ( Feist Publications ( '91 499 US 340, 113 LEd2d 358). While the expression, organization, placement, etc., of the factual data may be protected, Tickets is not alleged to have copied the method of presentation, but rather to have extracted the factual data and presented it in its own format. Where Tickets is alleged to have copied (¶ 35 of FAC) is in the making of thousands of copies taken from Ticketmaster's interior web pages for the purpose of extracting the factual data carried thereon and using it to publish its own version containing the factual data. Thus, copying is alleged (albeit not republication of protected material). Thus, the court rejects Ticketmaster's basic contention that it is copyright infringement to take basic facts from its publicly available web pages and use those facts (if the expression and method of presentation is not copied). Copying is alleged by transferring the event pages to Ticket's own computer to facilitate extraction of the facts. This is a very different case from merely copying for its customers the Ticketmaster event pages. This falls in the same category of taking historical facts from a work of reference and printing them in different expression. By a similar analogy, the hyperlink to the interior web page (whatever it may do for-the unfair competition or interference claims) does not allege copying.
Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently.
There is an ambiguity in the FAC which yet needs to be cleared up, although not involving a failure to state a claim. A federal court does not have jurisdiction of a copyright infringement claim until the copyright is registered (or refused registration). (In at least one circuit, application for registration is sufficient to confer jurisdiction.) In ¶ 26 of the FAC, it is alleged that the "Ticketmaster Web Site, including the Ticketmaster Event Pages, is subject to copyright owned by Ticketmaster Corp. The copyright of the Ticketmaster Web Site has been registered with the United States Copyright Office...." Exhibit F to the FAC shows that the title of the work copyrighted is "Ticketmaster.com Web Site II" and (later) "Ticketmaster.com Web site III" and that the nature of the authorship is "underlying source code." The event pages change from day to day as old events are dropped out and new ones are added. There is a possible ambiguity as to whether the copyright as registered covers not only the home page but also each of the event pages. Since the alleged copying is only of the event pages, there is still the question for further proceedings as to the court's jurisdiction over the claim of copyright infringement of the event pages.
The motion to dismiss the second claim (breach of contract) is founded on the "terms and conditions" set forth on the home page of the Ticketmaster site. This provides that anyone going beyond the home page agrees to the terms and conditions set forth, which include that the information is for personal use only, may not be used for commercial purposes, and no deep linking to the site is permitted. In defending this claim, Ticketmaster makes reference to the "shrink-wrap license" cases, where the packing on the outside of the CD stated that opening the package constitutes adherence to the license agreement (restricting republication) contained therein. This has been held to be enforceable. That is not the same as this case because the "shrink-wrap license agreement" is open and obvious and in fact hard to miss. Many web sites make you click on "agree" to the terms and conditions before going on, but Ticketmaster does not. Further, the terms and conditions are set forth so that the customer needs to scroll down the home page to find and read them. Many customers instead are likely to proceed to the event page of interest rather than reading the "small print." It cannot be said that merely putting the terms and conditions in this fashion necessarily creates a contract with anyone using the web site. The motion is granted with leave to amend in case there are facts showing Tickets' knowledge of them plus facts showing implied agreement to them.
August 10, 2000
The motion of Ticketmaster Corporation and Ticketmaster Online-Search, Inc. (hereafter collectively Ticketmaster or TM) for preliminary injunction against Tickets.Com, Inc. (hereafter T.Com) is denied.
This matter has taken some significant turns since the matter was last here on the motion to dismiss on March 27, 2000. Some of those differences affect consideration of the motion for preliminary injunction. One significant difference is that since the motion to dismiss, TM devised technical methods of blocking direct access by "deep hyperlinking" to TM interior pages. Thus, at the present time, when T.Com hyperlinks to TM, the references is to the TM home page, where the public accessing TM by internet normally starts. However, this may soon change, as discussed below, because TM has now lost the technical means of preventing deep hyperlinking directly to the event web pages. ...
A third change which the court considers irrelevant to the items to be considered on this motion for preliminary injunction is the filing of an anti-trust counterclaim by T.Com, accompanied by a flurry of documents (mostly press releases) apparently designed to show that TM has been gobbling up competitors and has generally been giving T.Com a competitive hard time in operating at a profit. While these may become important issues at the anti-trust phase of the case, they do not affect the copyright, Lanham Act, or unfair competition issues presented on this injunction motion.
The facts governing this preliminary injunction motion have partly been stated in the minute order of March 27 and will not all be repeated here. (In this respect, the court does not intend this to be a published opinion, but rather a minute order announcing a result, and as a result has not written for publication with the usual citation of excess authorities and other attention to grammatical or literary detail. In addition, no pronouncements of legal significance are intended; those come from the Court of Appeals. While the court cannot prevent publication, such is not done with the permission or desire of the court -- and also with the hope that any typos are corrected.)
The essential facts are that TM operates the largest ticket brokerage business in the country. It has exclusive arrangements to sell the tickets for many of the largest entertainment and athletic events in the country. It sells these tickets through a network of about 2900 retail ticket windows, over the telephone, and through the internet. The internet business is the focus of this case. TM maintains a "home" page (www.ticketmaster.Com) and has a separate "event" page for each separate event. The typical internet customer accesses the home page and is directed by a series of directories to the particular event page which lists in standardized fashion the basic information about the event (time, place, date, price, seating choices if relevant, and directions on how to order tickets by telephone or directly by interactive internet, presumably using credit cards and how to take delivery -- UPS, will-call, etc.). The internet business is an increasingly large portion of TM business; the latest figures show about 3,000,000 "hits" a day on the TM home page. TM has a large number of interior event pages which change with additions or modifications of about 35,000 pages per day. This is managed by a set of computers which assign each interior web page a unique electronic address (called a URL) which facilitates the user to reach the precise page for the event in which the user is interested. Aside from the revenue in selling tickets, TM also receives revenue from advertisers who pay based on the number of hits on the page where the advertisement is carried (this is apparently true both of the home page and the event page, since the examples attached show advertisements on both types of pages). The home and event pages carry TM logos, so that the customer cannot be confused by the business entity with which he or she is dealing. The home page contains a statement that the user agrees to the "terms and conditions" of use. One can scroll down to the terms and conditions, which provide, among other things, that use binds one to the terms and conditions, that any use is for the person use of the user, and that no commercial use can be made of the information provided. However, unlike certain other interactive internet programs (see eBay for an example), the user is not required to check an "I agree" box before proceeding to the interior web page wherein is located the information about the particular event in which he or she is interested.
T.Com operates in very different fashion. They do, indeed, have certain events in which the directly sell tickets, although very small in number compared to TM. However, their main business appears to operate as a clearing house to provide information as to where tickets to any event may be obtained. Thus, T.Com collects information on as many events as it can, providing its "customer" information on where the tickets may be purchased, whether from T.Com or another source. Where T.Com can sell the tickets itself, it does in a manner similar to TM (phone or internet). However, is also provides information on other sources from which tickets may be purchased. It maintains its own form of event page for each event, listing the basic information (price, date, time, etc.). For the vast number of TM events that it lists, it has a statements that tickets may only be purchased from another ticket broker (not naming TM), and provides a box to check which at the present time will take the user directly by hyperlink to the TM home page. (At the time of the motion to dismiss, the hyperlink took the user directly to the interior web page of TM for the event in question. In the interim, TM found the technical means of preventing this, so the user is now referred directly to the TM home page where he may start wending his way through the directories to the proper interior web page. However at oral argument, counsel inform the court that the technical method of blocking deep hyperlink reference directly to the TM event page is no longer applicable. T.com states that it may soon again start referring users directly to the TM event page by the use of deep hyperlinking.) Any ticket sale is made by TM. The proceeds are not shared by T.Com. T.Com also provides references and a telephone number or hyperlink to brokers who sell the tickets, some of which are auction sellers and some of which are "premium" ticket brokers, pejoratively known as "scalpers." T.Com makes money from advertisers, both on its home page and event page and from whatever ticket business in has of its own. The record does not reveal if it also makes a commission on sales by brokers to whom it refers customers, but not, of course, from TM.
The vast amount of information provided by T.Com on TM events comes from TM's computers, monitored by T.Com's computers. Since TM's computer information is open to the public, it is also available to T.Com. However, T.Com does not obtain the information in the same way as does the public (that is, by opening up an interior web page and reading the information off the screen), but rather by a sophisticated computer method of monitoring the thousands of interior TM web pages electronically by the use of a mysterious (to the court) devices known as a "webcrawlers" or "spiders"). The T.Com computers enter the TM computers electronically through the home page and make note of the URL's (electronic addresses) of the interior web pages. They then methodically extract the electronic information from the event page (containing the URL (electronic address of the event web page) price, time, date, place, etc.) and copy it temporarily (for 10-15 seconds) on its own computers. The T.Com programs then extract the purely factual information in the T.Com format on its own web pages. Except for the URL (discussed below), the copied TM web page (or, rather, the electronic signals which, if projected on the screen, would make up what the viewer sees on the screen) are then discarded and not used or retained for any other purpose. Thus, the viewer of the T.Com event web page sees only the T.Com version of the facts. The source of the facts are, of course, the TM event web pages. Now, to approach analysis of these facts from the standpoint of a preliminary injunction: The primary star in the copyright sky for this case is that purely factual information may not be copyrighted. (Feist Publications '91.)
Thus, the time, place, venue, price, etc., of public events are not protected by copyright even if great are and expense is expended in gathering the information (see the possibility of the "hot news" exception discussed below). Thus, unfair as it may seem to TM, the basic facts that it gathers and publishes cannot be protected from copying. To be sure, the manner of expression and format of presenting those facts is protectable, but T.Com has taken great care not to use the TM format and expression in publishing the facts that it takes from TM. This all goes back to a fundamental concept of copyright law that ideas and knowledge may not become the property of any one person even when that person has developed the idea or knowledge. What is protectable is the manner in which the idea or knowledge is expressed. Thus, Longfellow was free to take the famous facts of the ride of Paul Revere and tell the story in his own incomparable words -- no one can copy the words, but anyone may tell the story in his own words (if not as well). The major difficulty with many of plaintiff's theories and concepts is that it is attempting to find a way to protect its expensively developed basic information what it considers a competitor and it cannot do so.
In the court's opinion, there are two of TM's theories which demand serious consideration on this motion for preliminary injunction and which may well prove decisive at trial although the court does not now consider them sufficient for a preliminary injunction. They are copyright and the trespass theories.
As to copyright, there is undeniably copying of the electronic bits which make up the TM event pages when projected on the screen. Except for the URL, the copying is transitory and temporary and is not used directly in competition with TM, but it is copying and it would violate the Copyright Act if not justified. The fact that irreparable injury is hard to see even with a magnifying glass would not prevent an injunction because of the doctrine that irreparable injury is presumed if there is copying. The copying is intentional and done for commercial purposes even if the copied material is not sold as that of the copier. The copying, as summarized above, takes place as a part of the process of taking the unprotectable) facts from TM's web sites so as to turn those facts into facts published by T.Com in its own format. At oral argument, counsel explained that by the nature of the way computers work, it is necessary to copy the electronic signals temporarily on the copying computer's RAM in order to extract the factual data present thereon. It is, therefore, a necessary part of the process by which T.Com efficiently takes basic facts from the TM websites, retains the electronic signals from TM on its own computer for a few second, during which T.Com's own computer program strips the signals of the basic facts, and then discards the copied electronic signals of TM as of no further use (except for the URL, discussed below). What prevents the issuance of a preliminary injunction on these facts is the "fair use" doctrine as recognized by the Ninth Circuit in Connectix Corp. 9Cir'00 203 F3d 596 and certain prior cases. Connectix holds that copying for reverse engineering to obtain non-protectable information is permitted by the fair use doctrine in certain circumstances (see also Acuff-Rose Music, Inc. 510 US 569, 127 Led2d 500). Reverse engineering to get at unprotected functional elements is not the same process as used here but the analogy seems to apply. The copy is not used competitively. It is destroyed after its limited function is done. It is used only to facilitate obtaining non-protectable data -- here the basic factual data. It may not be the only way of obtaining that data (i.e., a thousand scriveners with pencil and paper could do the job given time), but it is the most efficient way, not held to be an impediment in Connectix. TM makes the point that copying the URL (the electronic address to the web pages) which is not destroyed, but retained and used, is copying protected material. The court doubts that the material is protectable because the URL appears to contain functional and factual elements only and not original material. It appears likely to the court that plaintiff's odds on prevailing on the fair use doctrine at trial are sufficiently low that a preliminary injunction should not be granted even with the presumption of irreparable injury which goes with copyright infringement.
The other point dealing with copyright is the so-called "hot news" exception. As a basic exception to the rule that factual information is not protectable, an exception developed in the case of competing news organizations selling news to customers (newspapers) in competition with one another. Certain protections were allowed to prevent wholesale thievery of news by one organization from another. Here, it is suggested that at least some of the event news is "hot" -- that is, the event is sold out within hours or minutes of the tickets becoming available. This exception is not made out here. Even if such a hot event occurs (the court is informally informed that this is not rare) in a TM controlled event, the reference for ticket sales will be to TM, who sells the tickets in any event. Second, there is no showing that this situation occurs often enough to be of commercial significance.
Accordingly, a preliminary injunction will not be issued on the copyright aspects of the case. There could be a difference at trial, and the difference could depend on the necessity of downloading the electronic signals onto the T.Com computers for purposes of extracting the unprotected factual information.
. . .
The remaining contentions may be disposed of with fewer words. . . . The other claims appear to have no basis worthy of an injunction. Preliminary injunction denied.
Preliminary Note on Framing and Its Terminology
Framing is a method of presentation in a Web page that breaks the screen up into multiple non-overlapping windows. Each window contains a display from a separate HTML file, for example, a Web page from a different Web site that is fetched by automatically hyperlinking to it.
Proprietors of copyright in framed pages have at times contended that framing their Web pages constituted copyright infringement of their copyrights. The problem with basing the theory of copyright infringement on a reproduction or distribution of copies by the accused infringer is that the latter does not directly reproduce or distribute any copy of the original Web page.
The accused infringer simply writes the URL of the original Web page into the HTML code for the accused infringer's own Web page, associated with code appropriate for referencing that URL. Then, the ultimate user's browser reads the code and transfers to the user's screen display the screen display associated with the URL. That is, the user's browser reads the HTML code and itself fetches the original Web page from the server that the proprietor of the original page uses. This action causes a display of the copyright-protected content of the original page on the end user's screen.
The fact that the complaining copyright owner put its material up on a Web page on the Internet, at least by implication inviting all comers to view it, has been an obstacle to theories of indirect infringement or contributory infringement. For contributory infringement to exist, there must be a direct infringer (here, the end user). But the end user is considered to be free from infringement liability because of an equitable estoppel or implied license. In effect, the court says, "The plaintiff asked for it and therefore will not be heard to complain."
This Web site contains several demonstrations of framing, written in a way to give you an idea why copyright owners have been resentful about framing.
Web page of Professor Nefarious in which he criticizes the material used for this course and endlessly toots his own horn.
Framing page containing links to further material, demonstrations, and illustration of technical expedients to prevent a page from being framed.
Framing the 'Framing' page — demonstration of framing the above listed Framing page with annoying advertisements that would madden any copyright proprietor.
There was very little case law on framing before 2006. Most cases have been settled without adjudication. Typically, the defendants in such cases were poorly funded or startup companies not in a position to litigate against well funded plaintiffs; the course of least resistance was to agree to the plaintiff's demands. The Ninth Circuit's first opinion in the Arriba Soft case addressed what it termed framing as an unauthorized public performance. But the court was simply misdescribing deep linking or inline linking. That part of the opinion was later withdrawn.
The legality of framing typically gets intertwined with the legality of linking, particularly deep linking, because framing requires the use of linking. Another reason is that search engines have figured prominently in the case-law. Search engines require their users to click on links to view the results of a search. These cases seem to start out with the plaintiff saying he is mad about one thing, and later on the issues crystallize in a way that the plaintiff now says he is mad about something else. Thus, a linking case may turn into a framing case, or more often vice-versa.
The Arriba Soft Litigation
Arriba Soft, operator of a Web site with a search engine for pictures available on the Internet, did two things that offended Les Kelly. First, it made "thumbnails" of the pictures on Kelly's Web site and indexed them for users to retrieve and view in an image search (this was generally similar to how the present Google image search engine operates). The district court and court of appeals held this a fair use. Second, Arriba provided deep links on its Web page that permitted users to bypass Kelly's home page and go directly to the pictures that Kelly had uploaded to his site, without Kelly's associated texts. In its first opinion, the court of appeals held this use to be infringing and not fair use. In a second opinion, 15 months later, the court withdrew those portions of the first opinion and remanded the case for trial.
The image shown at left is an example of the kind of photographic image that Kelly featured on his Web site. The smaller image shown at right is a "thumbnail" of the first image, reduced to about 20% in width and height. The thumbnail image contains about 4% as many pixels as the first image, and thus it contains only 4% as much information. The thumbnail image is also a link. If you click on it, your browser will jump to an advertisement for Kelly's book about the Gold Rush. The second (lower) thumbnail at the right is a deep link to the large picture, itself. This was the defendant's practice that particularly incensed Kelly, because it "took his picture out of its context."
An excerpt from the district court opinion follows. A more complete version of the District Court opinion is available at the link just shown.
Kelly v. Arriba Soft Corp.
United States District Court
77 F. Supp. 2d 1116 (C.D. Cal. 1999)
The most significant factor favoring Defendant is the transformative nature of its use of Plaintiff's images. Defendant's use is very different from the use for which the images were originally created. Plaintiff's photographs are artistic works used for illustrative purposes. Defendant's visual search engine is designed to catalog and improve access to images on the Internet. The character of the thumbnail index is not esthetic, but functional; its purpose is not to be artistic, but to be comprehensive.
To a lesser extent, the Arriba Vista image attributes page also served this purpose by allowing users to obtain more details about an image. The image attributes page, however, raises other concerns. It allowed users to view (and potentially download) full-size images without necessarily viewing the rest of the originating Web page. At the same time, it was less clearly connected to the search engine's purpose of finding and organizing Internet content for users. The presence of the image attributes page in the old version of the search engine somewhat detracts from the transformative effect of the search engine. But, when considering purpose and character of use in a new enterprise of this sort, it is more appropriate to consider the transformative purpose rather than the early imperfect means of achieving that purpose. The Court finds the purpose and character of Defendant's use was on the whole significantly transformative.
The Court finds two of the four [fair use] factors weigh in favor of fair use, and two weigh against it. The first and fourth factors (character of use and lack of market harm) weigh in favor of a fair use finding because of the established importance of search engines and the "transformative" nature of using reduced versions of images to organize and provide access to them. The second and third factors (creative nature of the work and amount or substantiality of copying) weigh against fair use.
The first factor of the fair use test is the most important in this case. Defendant never held Plaintiff's work out as its own, or even engaged in conduct specifically directed at Plaintiff's work. Plaintiff's images were swept up along with two million others available on the Internet, as part of Defendant's efforts to provide its users with a better way to find images on the Internet. Defendant's purposes were and are inherently transformative, even if its realization of those purposes was at times imperfect. Where, as here, a new use and new technology are evolving, the broad transformative purpose of the use weighs more heavily than the inevitable flaws in its early stages of development.
The Court has weighed all of the § 107 factors together. The Court finds Defendant's conduct constituted fair use of Plaintiff's images. There is no triable issue of material fact remaining to be resolved on the question of fair use, and summary adjudication is appropriate. Defendant's motion is GRANTED and Plaintiff's motion is DENIED as to the copyright infringement claims.
. . . Plaintiff's images are vulnerable to copyright infringement because they are displayed on Web sites. Plaintiff has not shown users of Defendant's site were any more likely to infringe his copyrights, any of these users did infringe, or Defendant should reasonably have expected infringement.
The first Ninth Circuit opinion follows.
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