|||UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
|||February 6, 2002
|||LESLIE A. KELLY, AN INDIVIDUAL, DBA LES KELLY PUBLICATIONS, DBA LES KELLY
ENTERPRISES, DBA SHOW ME THE GOLD, PLAINTIFF-APPELLANT,
ARRIBA SOFT CORPORATION, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.
|||D.C. No. CV-99-00560-GLT Appeal from the United States District Court
for the Central District of California Gary L. Taylor, District Judge, Presiding
|||Counsel Charles D. Ossola, Arnold & Porter, Washington, D.C., for
the plaintiff-appellant. Judith B. Jennison, Perkins Coie Llp, Menlo Park,
California, for the defendant-appellee. Robert J. Bernstein, Cowan, Liebowitz
& Latman, P.C., New York, New York, for Amici Curiae.
|||Before: Betty B. Fletcher, Thomas G. Nelson, and Marsha S. Berzon, Circuit
|||The opinion of the court was delivered by: T.G. Nelson, Circuit Judge
|||Argued and Submitted September 10, 2001--Pasadena, California
|||This case involves the application of copyright law to the vast world
of the internet and internet search engines. The plaintiff, Leslie Kelly,
is a professional photographer who has copyrighted many of his images of
the American West. Some of these images are located on Kelly's web site
or other web sites with which Kelly has a license agreement. The defendant,
Arriba Soft Corp.,*fn1 operates an internet
search engine that displays its results in the form of small pictures rather
than the more usual form of text. Arriba obtained its database of pictures
by copying images from other web sites. By clicking on one of these small
pictures, called "thumbnails," the user can then view a large
version of that same picture within the context of the Arriba web page.
|||When Kelly discovered that his photographs were part of Arriba's search
engine database, he brought a claim against Arriba for copyright infringement.
The district court found that Kelly had established a prima facie case of
copyright infringement based on Arriba's unauthorized reproduction and display
of Kelly's works, but that this reproduction and display constituted a non-infringing
"fair use " under Section 107 of the Copyright Act. Kelly appeals
that decision, and we affirm in part and reverse in part. The creation and
use of the thumbnails in the search engine is a fair use, but the display
of the larger image is a violation of Kelly's exclusive right to publicly
display his works. We remand with instructions to determine damages and
the need for an injunction.
|||The search engine at issue in this case is unconventional in that it displays
the results of a user's query as"thumbnail" images. When a user
wants to search the internet for information on a certain topic, he or she
types a search term into a search engine, which then produces a list of
web sites that have information relating to the search term. Normally, the
list of results is in text format. The Arriba search engine, however, produces
its list of results as small pictures.
|||To provide this functionality, Arriba developed a computer program that
"crawls" the web looking for images to index. This crawler downloads
full-sized copies of the images onto Arriba's server. The program then uses
these copies to generate smaller, lower-resolution thumbnails of the images.
Once the thumbnails are created, the program deletes the full-sized originals
from the server. Although a user could copy these thumbnails to his computer
or disk, he cannot increase the resolution of the thumbnail; any enlargement
would result in a loss of clarity of the image.
|||The second component of the Arriba program occurs when the user double-clicks
on the thumbnail. From January 1999 to June 1999, clicking on the thumbnail
produced the"Images Attributes" page. This page contained the
original full-sized image imported directly from the originating web site,
along with text describing the size of the image, a link to the originating
web site, the Arriba banner, and Arriba advertising. The process of importing
an image from another web site is called inline linking. The image imported
from another web site is displayed as though it is part of the current web
page, surrounded by the current web page's text and advertising. As a result,
although the image in Arriba's Image Attributes page was directly from the
originating web site, and not copied onto Arriba's site, the user typically
would not realize that the image actually resided on another web site.
|||From July 1999 until sometime after August 2000, the results page contained
thumbnails accompanied by two links: "Source" and "Details."
The "Details " link produced a screen similar to the Images Attributes
page but with a thumbnail rather than the full-sized image. Alternatively,
by clicking on the "Source" link or the thumbnail from the results
page, the site produced two new windows on top of the Arriba page. The window
in the forefront contained the full-sized image, imported directly from
the originating web site. Underneath that was another window displaying
the originating web page. This technique is known as framing. The image
from a second web site is viewed within a frame that is pulled into the
primary site's web page.*fn2
|||In January 1999, Arriba's crawler visited web sites that contained Kelly's
photographs. The crawler copied thirty-five of Kelly's images to the Arriba
database. Kelly had never given permission to Arriba to copy his images
and objected when he found out that Arriba was using them. Arriba deleted
the thumbnails of images that came from Kelly's own web sites and placed
those sites on a list of sites that it would not crawl in the future. Several
months later, Arriba received Kelly's complaint of copyright infringement,
which identified other images of his that came from third-party web sites.
Arriba subsequently deleted those thumbnails and placed those third-party
sites on a list of sites that it would not crawl in the future.
|||The district court granted summary judgment in favor of Arriba. Although
the court found that Kelly had established a prima facie case of infringement
based on Arriba's reproduction and display of Kelly's photographs, the court
ruled that such actions by Arriba constituted fair use. The court determined
that two of the fair use factors weighed heavily in Arriba's favor. Specifically,
the court found that the character and purpose of Arriba's use was significantly
transformative and the use did not harm the market for or value of Kelly's
works. Kelly now appeals this decision.
|||We review a grant of summary judgment de novo.*fn3
We also review the court's finding of fair use, which is a mixed question
of law and fact, by this same standard.*fn4
"In doing so, we must balance the nonexclusive factors set out in 17
U.S.C. § 107."*fn5
|||This case involves two distinct actions by Arriba that warrant analysis.
The first action consists of the reproduction of Kelly's images to create
the thumbnails and the use of those thumbnails in Arriba's search engine.
The second action involves the display of Kelly's images through the inline
linking and framing processes when the user clicks on the thumbnails. Because
these actions are distinct types of potential infringement, we will analyze
|||An owner of a copyright has the exclusive right to reproduce, distribute,
and publicly display copies of the work.*fn6
To establish a claim of copyright infringement by reproduction, the plaintiff
must show ownership of the copyright and copying by the defendant.*fn7
As to the thumbnails, there is no dispute that Kelly owned the copyright
to the images and that Arriba copied those images. Therefore, Kelly established
a prima facie case of copyright infringement.
|||A claim of copyright infringement is subject to certain statutory exceptions,
including the fair use exception. *fn8
This exception "permits courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity which that
law is designed to foster."*fn9 The
statute sets out four factors to consider in determining whether the use
in a particular case is a fair use.*fn10
We must balance these factors, in light of the objectives of copyright law,
rather than view them as definitive or determinative tests. *fn11
We now turn to the four fair use factors.
|||1. Purpose and character of the use.
|||The Supreme Court has rejected the proposition that a commercial use of
the copyrighted material ends the inquiry under this factor.*fn12
|||[t]he central purpose of this investigation is to see . . . whether the
new work merely supersede[s ] the objects of the original creation, or instead
adds something new, with a further purpose or different character, altering
the first with new expression, meaning, or message; it asks, in other words,
whether and to what extent the new work is transformative.*fn13
|||The more transformative the new work, the less important the other factors,
including commercialism, become. *fn14
|||There is no dispute that Arriba operates its web site for commercial purposes
and that Kelly's images were part of Arriba's search engine database. As
the district court found, while such use of Kelly's images was commercial,
it was more incidental and less exploitative in nature than more traditional
types of commercial use.*fn15 Arriba
was neither using Kelly's images to directly promote its web site nor trying
to profit by selling Kelly's images. Instead, Kelly's images were among
thousands of images in Arriba's search engine database. Because the use
of Kelly's images was not highly exploitative, the commercial nature of
the use only slightly weighs against a finding of fair use.
|||The second part of the inquiry as to this factor involves the transformative
nature of the use. We must determine if Arriba's use of the images merely
superseded the object of the originals or instead added a further purpose
or different character.*fn16 We find
that Arriba's use of Kelly's images for its thumbnails was transformative.
|||Despite the fact that Arriba made exact replications of Kelly's images,
the thumbnails were much smaller, lower-resolution images that served an
entirely different function than Kelly's original images. Kelly's images
are artistic works used for illustrative purposes. His images are used to
portray scenes from the American West in an esthetic manner. Arriba's use
of Kelly's images in the thumbnails is unrelated to any esthetic purpose.
Arriba's search engine functions as a tool to help index and improve access
to images on the internet and their related web sites. In fact, users are
unlikely to enlarge the thumbnails and use them for artistic purposes because
the thumbnails are of much lower resolution than the originals; any enlargement
results in a significant loss of clarity of the image, making them inappropriate
as display material.
|||Kelly asserts that because Arriba reproduced his exact images and added
nothing to them, Arriba's use cannot be transformative. It is true that
courts have been reluctant to find fair use when an original work is merely
retransmitted in a different medium.*fn17
Those cases are inapposite, however, because the resulting use of the copyrighted
work in those cases was the same as the original use. For instance, reproducing
music CD's into computer MP3 format does not change the fact that both formats
are used for entertainment purposes. Likewise, reproducing news footage
into a different format does not change the ultimate purpose of informing
the public about current affairs.
|||Even in Infinity Broadcast Corp. v. Kirkwood,*fn18
where the retransmission of radio broadcasts over telephone lines was for
the purpose of allowing advertisers and radio stations to check on the broadcast
of commercials or on-air talent, there was nothing preventing listeners
from subscribing to the service for entertainment purposes. Even though
the intended purpose of the retransmission may have been different from
the purpose of the original transmission, the result was that people could
use both types of transmissions for the same purpose.
|||This case involves more than merely a retransmission of Kelly's images
in a different medium. Arriba's use of the images serves a different function
than Kelly's use-improving access to information on the internet versus
artistic expression. Furthermore, it would be unlikely that anyone would
use Arriba's thumbnails for illustrative or esthetic purposes because enlarging
them sacrifices their clarity. Because Arriba's use is not superseding Kelly's
use but, rather, has created a different purpose for the images, Arriba's
use is transformative.
|||Comparing this case to two recent cases in the Ninth and First Circuits
reemphasizes the functionality distinction. In Worldwide Church of God v.
Philadelphia Church of God,*fn19 we
held that copying a religious book to create a new book for use by a different
church was not transformative.*fn20
The second church's use of the book merely superseded the object of the
original book, which was to serve religious practice and education. The
court noted that "where the use is for the same intrinsic purpose as
[the copyright holder's] . . . such use seriously weakens a claimed fair
|||On the other hand, in Nunez v. Caribbean International News Corp.,*fn22
the First Circuit found that copying a photograph that was intended to be
used in a modeling portfolio and using it instead in a news article was
a transformative use.*fn23 By putting
a copy of the photograph in the newspaper, the work was transformed into
news, creating a new meaning or purpose for the work. The use of Kelly's
images in Arriba's search engine is more analogous to the situation in Nunez
because Arriba has created a new purpose for the images and is not simply
superseding Kelly's purpose.
|||The Copyright Act was intended to promote creativity, thereby benefitting
the artist and the public alike. To preserve the potential future use of
artistic works for purposes of teaching, research, criticism, and news reporting,
Congress made the fair use exception.*fn24
Arriba's use of Kelly's images promotes the goals of the Copyright Act and
the fair use exception. The thumbnails do not stifle artistic creativity
because they are not used for illustrative or artistic purposes and therefore
do not supplant the need for the originals. In addition, they benefit the
public by enhancing information gathering techniques on the internet.
|||In Sony Computer Entertainment America, Inc. v. Bleem,*fn25
we held that when Bleem copied "screen shots" from Sony computer
games and used them in its own advertising, it was a fair use.*fn26
In finding that the first factor weighed in favor of Bleem, we noted that
"comparative advertising redounds greatly to the purchasing public's
benefit with very little corresponding loss to the integrity of Sony's copyrighted
material."*fn27 Similarly, this
first factor weighs in favor of Arriba due to the public benefit of the
search engine and the minimal loss of integrity to Kelly's images.
|||2. Nature of the copyrighted work.
|||"Works that are creative in nature are closer to the core of intended
copyright protection than are more fact-based works."*fn28
Photographs used for illustrative purposes, such as Kelly's, are generally
creative in nature. The fact that a work is published or unpublished also
is a critical element of its nature.*fn29
Published works are more likely to qualify as fair use because the first
appearance of the artist's expression has already occurred.*fn30
Kelly's images appeared on the internet before Arriba used them in its search
image. When considering both of these elements, we find that this factor
only slightly weighs in favor of Kelly.
|||3. Amount and substantiality of portion used.
|||"While wholesale copying does not preclude fair use per se, copying
an entire work militates against a finding of fair use."*fn31
However, the extent of permissible copying varies with the purpose and character
of the use.*fn32 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 will neither weigh for nor against either party because, although
Arriba did copy each of Kelly's images as a whole, it was reasonable to
do so in light of Arriba's use of the images. It was necessary for Arriba
to copy the entire image to allow users to recognize the image and decide
whether to pursue more information about the image or the originating web
site. If Arriba only copied part of the image, it would be more difficult
to identify it, thereby reducing the usefulness of the visual search engine.
|||4. Effect of the use upon the potential market for or value of the copyrighted
|||This last factor requires courts to consider "not only the extent
of market harm caused by the particular actions of the alleged infringer,
but also `whether unrestricted and wide-spread conduct of the sort engaged
in by the defendant . . . would result in a substantially adverse impact
on the potential market for the original.' "*fn33
A transformative work is less likely to have an adverse impact on the market
of the original than a work that merely supersedes the copyrighted work.*fn34
|||Kelly's images are related to several potential markets. One purpose of
the photographs is to attract internet users to his web site, where he sells
advertising space as well as books and travel packages. In addition, Kelly
could sell or license his photographs to other web sites or to a stock photo
database, which then could offer the images to its customers.
|||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. By showing the thumbnails
on its results page when users entered terms related to Kelly's images,
the search engine would guide users to Kelly's web site rather than away
from it. Even if users were more interested in the image itself rather than
the information on the web page, they would still have to go to Kelly's
site to see the full-sized image. The thumbnails would not be a substitute
for the full-sized images because when the thumbnails are enlarged, they
lose their clarity. If a user wanted to view or download a quality image,
he or she would have to visit Kelly's web site. *fn35
This would hold true whether the thumbnails are solely in Arriba's database
or are more widespread and found in other search engine databases.
|||Arriba's use of Kelly's images also would not harm Kelly's ability to
sell or license his full-sized images. Arriba does not sell or license its
thumbnails to other parties. Anyone who downloaded the thumbnails would
not be successful selling the full-sized images because of the low-resolution
of the thumbnails. There would be no way to view, create, or sell a clear,
full-sized image without going to Kelly's web sites. Therefore, Arriba's
creation and use of the thumbnails does not harm the market for or value
of Kelly's images. This factor weighs in favor of Arriba.
|||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.
|||The second part of our analysis concerns Arriba's inline linking to and
framing of Kelly's full-sized images. This use of Kelly's images does not
entail copying them but, rather, importing them directly from Kelly's web
site. Therefore, it cannot be copyright infringement based on the reproduction
of copyrighted works as in the previous discussion. Instead, this use of
Kelly's images infringes upon Kelly's exclusive right to "display the
copyrighted work publicly."*fn36
|||1. Public display right.
|||In order for Kelly to prevail, Arriba must have displayed Kelly's work
without his permission and made that display available to the public. The
Copyright Act defines "display" as showing a copy of a work.*fn37
This would seem to preclude Kelly from arguing that showing his original
images was an infringement. However, the Act defines a copy as a material
object in which a work is fixed, including the material object in which
the work is first fixed.*fn38 The legislative
history of the Act makes clear that "[s]ince`copies' are defined as
including the material object `in which the work is first fixed,' the right
of public display applies to original works of art as well as to reproductions
of them."*fn39 By inline linking
and framing Kelly's images, Arriba is showing Kelly's original works without
|||The legislative history goes on to state that " `display' would include
the projection of an image on a screen or other surface by any method, the
transmission of an image by electronic or other means, and the showing of
an image on a cathode ray tube, or similar viewing apparatus connected with
any sort of information storage and retrieval system."*fn40
This langauge indicates that showing Kelly's images on a computer screen
would constitute a display.
|||The Act's definition of the term"publicly" encompasses a transmission
of a display of a work to the public "by means of any device or process,
whether the members of the public capable of receiving the performance or
display receive it in the same place or in separate places and at the same
time or at different times."*fn41
A display is public even if there is no proof that any of the potential
recipients was operating his receiving apparatus at the time of the transmission.
*fn42 By making Kelly's images available
on its web site, Arriba is allowing public access to those images. The ability
to view those images is unrestricted to anyone with a computer and internet
|||The legislative history emphasizes the broad nature of the display right,
stating that "[e]ach and every method by which the images or sounds
comprising a performance or display are picked up and conveyed is a `transmission,'
and if the transmission reaches the public in [any] form, the case comes
within the scope of [the public performance and display rights] of section
106."*fn43 Looking strictly at
the language of the Act and its legislative history, it appears that when
Arriba imports Kelly's images into its own web page, Arriba is infringing
upon Kelly's public display right. The limited case law in this area supports
|||No cases have addressed the issue of whether inline linking or framing
violates a copyright owner's public display rights. However, in Playboy
Enterprises, Inc. v. Webbworld, Inc.,*fn44
the court found that the owner of an internet site infringed a magazine
publisher's copyrights by displaying copyrighted images on its web site.*fn45
The defendant, Webbworld, downloaded material from certain newsgroups, discarded
the text and retained the images, and made those images available to its
internet subscribers.*fn46 Playboy owned
copyrights to many of the images Webbworld retained and displayed. The court
found that Webbworld violated Playboy's exclusive right to display its copyrighted
works, noting that allowing subscribers to view copyrighted works on their
computer monitors while online was a display.*fn47
The court also discounted the fact that no image existed until the subscriber
downloaded it. The image existed in digital form, which made it available
for decoding as an image file by the subscriber, who could view the images
merely by visiting the Webbworld site. *fn48
|||Although Arriba does not download Kelly's images to its own server but,
rather, imports them directly from other web sites, the situation is analogous
to Webbworld. By allowing the public to view Kelly's copyrighted works while
visiting Arriba's web site, Arriba created a public display of Kelly's works.
Arriba argues that Kelly offered no proof that anyone ever saw his images
and, therefore, there can be no display. We dispose of this argument, as
did the court in Webbworld, because Arriba made the images available to
any viewer that merely visited Arriba's site. Allowing this capability is
enough to establish an infringement; the fact that no one saw the images
goes to the issue of damages, not liability.
|||In a similar case, Playboy Enterprises, Inc. v. Russ Hardenburgh, Inc.,*fn49
the court held that the owner of an electronic bulletin board system infringed
Playboy's copyrights by displaying copyrighted images on its system. *fn50
The bulletin board is a central system that stores information, giving home
computer users the opportunity to submit information to the system (upload)
or retrieve information from the system (download). In this case, the defendant
encouraged its subscribers to upload adult photographs, screened all submitted
images, and moved some of the images into files from which general subscribers
could download them. *fn51 Because these
actions resulted in subscribers being able to download copyrighted images,
it violated Playboy's right of public display.*fn52
Again, the court noted that adopting a policy that allowed the defendants
to place images in files available to subscribers entailed a display.*fn53
This conclusion indicates that it was irrelevant whether anyone actually
saw the images.
|||Both of these cases highlighted the fact that the defendants took an active
role in creating the display of the copyrighted images. The reason for this
emphasis is that several other cases held that operators of bulletin board
systems and internet access providers were not liable for copyright infringement.*fn54
These cases distinguished direct infringement from contributory infringement
and held that where the defendants did not take any affirmative action that
resulted in copying copyrighted works, but only maintained a system that
acted as a passive conduit for third parties' copies, they were not liable
for direct infringement.
|||The courts in Webbworld and Hardenburgh specifically noted that the defendants
did more than act as mere providers of access or passive conduits.*fn55
In Webbworld, the web site sold images after actively trolling the internet
for them and deciding which images to provide to subscribers. The court
stated that "Webbworld exercised total dominion over the content of
its site and the product it offered its clientele."*fn56
Likewise, in Hardenburgh, the court found that by encouraging subscribers
to upload images and then screening those images and selecting ones to make
available for downloading, the defendants were more than passive conduits.
|||Like the defendants in Webbworld and Hardenburgh, Arriba is directly liable
for infringement. Arriba actively participated in displaying Kelly's images
by trolling the web, finding Kelly's images, and then having its program
inline link and frame those images within its own web site. Without this
program, users would not have been able to view Kelly's images within the
context of Arriba's site. Arriba acted as more than a passive conduit of
the images by establishing a direct link to the copyrighted images. Therefore,
Arriba is liable for publicly displaying Kelly's copyrighted images without
|||2. Fair use of full-sized images.
|||The last issue we must address is whether Arriba's display of Kelly's
full-sized images was a fair use. Although Arriba did not address the use
of the full-sized images in its fair use argument, the district court considered
such use in its analysis, and we will consider Arriba's fair use defense
|||Once again, to decide whom the first factor, the purpose and character
of the use, favors, we must determine whether Arriba's use of Kelly's images
was transformative. *fn58 Unlike the
use of the images for the thumbnails, displaying Kelly's full-sized images
does not enhance Arriba's search engine. The images do not act as a means
to access other information on the internet but, rather, are likely the
end product themselves. Although users of the search engine could link from
the full-sized image to Kelly's web site, any user who is solely searching
for images would not need to do so. Because the full-sized images on Arriba's
site act primarily as illustrations or artistic expression and the search
engine would function the same without them, they do not have a purpose
different from Kelly's use of them.
|||Not only is the purpose the same, but Arriba did not add new expression
to the images to make them transformative.*fn59
Placing the images in a "frame" or locating them near text that
specifies the size and originating web site is not enough to create new
expression or meaning for the images. In sum, Arriba's full-sized images
superseded the object of Kelly's images.*fn60
Because Arriba has not changed the purpose or character of the use of the
images, the first factor favors Kelly.
|||The analysis of the second factor, the nature of the copyrighted work,
is the same as in the previous fair use discussion because Kelly's images
are still the copyrighted images at issue. Therefore, as before, this factor
slightly weighs in favor of Kelly.
|||The third fair use factor turns on the amount of the work displayed and
the reasonableness of this amount in light of the purpose for the display.*fn61
Arriba displayed the full images, which cuts against a finding of fair use.
And while it was necessary to provide whole images to suit Arriba's purpose
of giving users access to the full-sized images without having to go to
another site, such a purpose is not legitimate, as we noted above. Therefore,
it was not reasonable to copy the fullsized display. The third factor favors
|||The fourth factor often depends upon how transformative the new use is
compared to the original use. A work that is very transformative will often
be in a different market from the original work and therefore is less likely
to cause harm to the original work's market.*fn62
Works that are not transformative, however, have the same purpose as the
original work and will often have a negative effect on the original work's
|||As discussed in the previous fair use analysis, Kelly's markets for his
images include using them to attract advertisers and buyers to his web site,
and selling or licensing the images to other web sites or stock photo databases.
By giving users access to Kelly's full-sized images on its own web site,
Arriba harms all of Kelly's markets. Users will no longer have to go to
Kelly's web site to see the full-sized images, thereby deterring people
from visiting his web site. In addition, users would be able to download
the full-sized images from Arriba's site and then sell or license those
images themselves, reducing Kelly's opportunity to sell or license his own
images. If the display of Kelly's images became widespread across other
web sites, it would reduce the number of visitors to Kelly's web site even
further and increase the chance of others exploiting his images. These actions
would result in substantial adverse effects to the potential markets for
Kelly's original works. For this reason, the fourth factor weighs heavily
in favor of Kelly.
|||In conclusion, all of the fair use factors weigh in favor of Kelly. Therefore,
the doctrine of fair use does not sanction Arriba's display of Kelly's images
through the inline linking or framing processes that puts Kelly's original
images within the context of Arriba's web site.
|||We hold that Arriba's reproduction of Kelly's images for use as thumbnails
in Arriba's search engine is a fair use under the Copyright Act. We also
hold that Arriba's display of Kelly's full-sized images is not a fair use
and thus violates Kelly's exclusive right to publicly display his copyrighted
works. The district court's opinion is affirmed as to the thumbnails and
reversed as to the display of the full-sized images. We remand with instructions
to determine damages for the copyright infringement and the necessity for
an injunction. Each party shall bear its own costs and fees on appeal.
|||AFFIRMED in part, REVERSED in part, and REMANDED.
|||*fn1 Arriba Soft has changed its name
since the start of this litigation. It is now known as "Ditto.com."
|||*fn2 Currently, when a user clicks on
the thumbnail, a window of the home page of the image appears on top of
the Arriba page. There is no window with just the image.
|||*fn3 Los Angeles News Serv. v. Reuters
Television Int'l. Ltd., 149 F.3d 987, 993 (9th Cir. 1998).
|||*fn6 17 U.S.C. § 106.
|||*fn7 Hustler Magazine, Inc. v. Moral
Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) (quoting 3 M. Nimmer
& D. Nimmer, Nimmer on Copyright § 13.01 (1985)).
|||*fn8 17 U.S.C. §§ 106, 107.
|||*fn9 Dr. Seuss Enters., L.P. v. Penguin
Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997) (internal quotation
marks and citation omitted).
|||*fn10 The four factors are: (1) the
purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes; (2) the nature of the copyrighted
work; (3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and (4) the effect of the use upon the
potential market for or value of the copyrighted work. 17 U.S.C. § 107.
|||*fn11 Dr. Seuss, 109 F.3d at 1399.
|||*fn12 Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 579 (1994).
|||*fn13 Id. (internal quotation marks
and citation omitted) (alteration in original).
|||*fn15 See, e.g., A&M Records,
Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) ("[C]ommercial
use is demonstrated by a showing that repeated and exploitative unauthorized
copies of copyrighted works were made to save the expense of purchasing
|||*fn16 Campbell, 510 U.S. at 579.
|||*fn17 See Infinity Broad. Corp. v.
Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (concluding that retransmission
of radio broadcast over telephone lines is not transformative); UMG Recordings,
Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000) (finding
that reproduction of audio CD into computer MP3 format does not transform
the work); Los Angeles News Serv., 149 F.3d at 993 (finding that reproducing
news footage without editing the footage was not very transformative).
|||*fn18 150 F.3d 104.
|||*fn19 227 F.3d 1110 (9th Cir. 2000).
|||*fn20 Id. at 1117.
|||*fn21 Id. (internal quotation and
citation omitted) (alteration and ellipses in original).
|||*fn22 235 F.3d 18 (1st Cir. 2000).
|||*fn23 Id. at 22-23.
|||*fn24 17 U.S.C. § 107 ("[T]he
fair use of a copyrighted work . . . for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright."); See
also Campbell, 510 U.S. at 577.
|||*fn25 214 F.3d 1022 (9th Cir. 2000).
|||*fn26 Id. at 1029.
|||*fn27 Id. at 1027.
|||*fn28 A&M Records, 239 F.3d at
1016 (citing Campbell, 510 U.S. at 586) (internal quotation marks omitted).
|||*fn29 Harper & Row Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 564 (1985) (noting that the scope
of fair use is narrower with respect to unpublished works because the author's
right to control the first public appearance of his work weighs against
the use of his work before its release).
|||*fn31 Worldwide Church of God, 227
F.3d at 1118 (internal quotation marks and citation omitted).
|||*fn32 Campbell, 510 U.S. at 586-87.
|||*fn33 Id. at 590 (quoting 3 M. Nimmer
& D. Nimmer, Nimmer on Copyright § 13.05[A], at 13-102.61 (1993))
(ellipses in original).
|||*fn34 See id. at 591 (stating that
a work that supersedes the object of the original serves as a market replacement
for it, making it likely that market harm will occur, but when the second
use is transformative, market substitution is less certain).
|||*fn35 We do not suggest that the inferior
display quality of a reproduction is in any way dispositive, or will always
assist an alleged infringer in demonstrating fair use. In this case, however,
it is extremely unlikely that users would download thumbnails for display
purposes, as the quality full-size versions are easily accessible from Kelly's
web sites. In addition, we note that in the unique context of photographic
images, the quality of the reproduction may matter more than in other fields
of creative endeavor. The appearance of photographic images accounts for
virtually their entire esthetic value.
|||*fn36 17 U.S.C. § 106(5).
|||*fn37 Id. § 101.
|||*fn39 H.R. Rep. No. 94-1476, at 64
(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5677.
|||*fn41 17 U.S.C. § 101.
|||*fn42 H.R. Rep. No. 94-1476, at 64-65
(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5678.
|||*fn43 Id. at 64.
|||*fn44 991 F. Supp. 543 (N.D. Texas
|||*fn45 Id. at 552-53.
|||*fn46 Id. at 549-50. Interestingly,
the images were retained as both full-sized images and thumbnails. A subscriber
could view several thumbnails on one page and then view a full-sized image
by clicking on the thumbnail. However, both the thumbnail and full-sized
image were copied onto Webbworld's server so no inline linking or framing
|||*fn47 Id. at 552.
|||*fn49 982 F. Supp. 503 (N.D. Ohio
|||*fn50 Id. at 513.
|||*fn54 See e.g. Religious Tech. Ctr.
v. Netcom On-Line Communication Serv., Inc., 907 F. Supp. 1361, 1372-73
(N.D.Cal. 1995) (holding that operator of a computer bulletin board system
that forwarded messages from subscribers to other subscribers was not liable
for displaying copyrighted works because it took no role in controlling
the content of the information but only acted as passive conduit of the
information); Marobie-FL, Inc. v. Nat'l. Ass'n of Fire and Equip. Distribs.,
983 F. Supp. 1167, 1176-79 (N.D. Ill. 1997) (holding that company that provided
a host computer for web page and access link to internet users was not directly
liable for copyright infringement when administrator of web page posted
copyrighted works on the page, because it only provided the means to display
the works but did not engage in the activity itself); Co-star Group Inc.
v. Loopnet, Inc., 164 F. Supp. 2d 688, 695-96 (D. Md. 2001) (holding that
operator of a web site that hosted real estate listings and photos was not
directly liable for copyright infringement because it did not actively participate
in copying or displaying the images).
|||*fn55 Webbworld, 991 F. Supp. at 552;
Hardenburgh, 982 F. Supp. at 513.
|||*fn56 Webbworld, 991 F. Supp. at 552.
|||*fn57 Hardenburgh, 982 F. Supp. at
|||*fn58 See Campbell, 510 U.S. at 579.
|||*fn61 Id. at 586-87.
|||*fn62 Id. at 591.
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