PTC Forum: Online Journal of the Patent, Trademark and Copyright Research Foundation

USA / COPYRIGHT / FAIR USE

Digital Media: Kelly v Arriba Soft

Matthew C Staples

Berkeley Technology Law Journal, Vol 18 No 1, 2003

"As technology has thrust complexity on this [digital media] area of law, courts have struggled to apply a doctrine developed for the print world to the evolving digital landscape." The author illustrates his point, particularly as regards the fair use principle in copyright law, by reference to the circumstances arising in the case of Kelly v Arriba Soft Corporation. In that case, the United States Ninth Circuit Court held that a firm's creation of small thumbnail reproductions of a photographer's copyrighted images for use in its visual search engine constituted fair use. The author helpfully provides a brief explanation of some of the technical terminology, including thumbnails, bots, spiders and wet crawlers, online linking and framing, robot exclusion headers and the like. He gives a short legal summary both of the right to display and of the fair use exception itself. He then describes the court proceedings in some detail and draws the essential distinction between the court's determination that reproduction in the form of thumbnails was a fair use and its determination that Arriba's online linking and framing of Kelly's full-sized images did not constitute fair use. He criticizes the decision in some respects: in his view, the court did not clearly state which of Arriba's modes of displaying Kelly's work was infringing; nor did it correctly characterize one of Arriba's full-size displays of Kelly's work as having used framing. On the other hand, the author recognizes that the court was primarily concerned to condemn linking and framing where these "superseded the object" of the original works. Moreover, the author emphasizes the potential importance of the court's decision as a possible extension of the recent trend towards acceptance of the "transformative" nature of secondary use. An enquiry into market effects essentially asks whether the allegedly infringing use supersedes the use of the original. "Arriba's thumbnails did not supersede the use of the original images and in fact actually increased traffic to Kelly's site." The case effectively indicates that any use with a different purpose from that of the original may be deemed sufficiently transformative to constitute fair use. This is likely to stimulate innovation. There may be some threats to this trend, possibly from technological controls, possibly from recourse to contract law to restrict uses capable of being considered fair use under copyright law. The author concludes that it may be too early to tell whether the trend reflected in the Kelly case will carry over to fair use jurisprudence outside the context of the Internet. [20091]