COLUMBIA, SC - In this action, the 9th Circuit Court of Appeals held that a search engine's use of thumbnails to display photographs was permitted as a fair use under 17 U.S.C. § 107; however, linking those thumbnails to full-sized versions of the thumbnails violated the plaintiff's exclusive right to display the photographs.
The court broke down its analysis to evaluating the use of thumbnails separate from the inline linking or framing of the full-sized images. The court applied the four factors under § 107 to each of the alleged infringing uses.
The four fair use 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.
In evaluating the purpose and character of the use, the court determines whether the use is for commercial purposes and whether the use adds anything to the original work, giving the new work a different expression, meaning, or message. If the work is transformative, the use may not be infringing. The court found Arriba Soft's use of the thumbnail images to be commercial but not exploitative, since the images were not used to directly profit their web site. The court further held that Arriba Soft's use of the thumbnails was transformative, because its purpose was improve access to information and not to convey an artistic expression. The thumbnail images were an ineffective tool to convey the artist's expression, because the low resolutions of the images prevented users from effectively enlarging the images. (more)
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