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.
The nature of the copyrighted works was creative; however, the previous publication of the photographs on the Internet by the plaintiff slightly lessened the harm to the plaintiff's expression.
The amount and substantiality of the use had negligible impact on the court's reasoning, because copying the entire work was necessary for Arriba Soft's transformative use. Only copying part of the image would decrease the effectiveness of the visual search engine.
The court also held that Arriba Soft's use did not have a substantially adverse impact on the plaintiff's market for his photographs due in large part to the transformative nature of his use. The thumbnails could not reasonably be resold as full-sized images. If a user wanted to download a full-sized image, the user would still have to go to the plaintiff's web site to retrieve the image, assuming that the thumbnails were not inline linked or framed.
Linking the thumbnails to the full-sized images of the photographs, however, did infringe upon the plaintiff's exclusive right to display his work. Unlike a typical search engine, which sends the user to the site selected, Arriba Soft's visual search engine used inline linking and framing to display the images. Arriba Soft directly infringed the plaintiff's copyrights, because it had an active role in the copying and linking process.
The court found that Arriba Soft infringed upon the plaintiff's right to display his works, even though the defendant could not prove that anyone ever viewed the linked images. Having the images available to be viewed by users was sufficient.
Inline linking or framing the full-sized images to the thumbnails is not a permissible fair use, because the use is not transformative, and the use is not necessary to enhance Arriba Soft's visual search engine. The user's goal is to find the full-sized image. By inline linking or framing the image, the user accomplishes his purpose without having to advance to the actual site containing the image; therefore, the linking goes beyond the object of the plaintiff's images. Furthermore, inline linking or framing the entire full-sized image is substantially more than necessary to accomplish the search engine's purpose of directing users to the searched-for images.
Finally, unlike the thumbnails, the inline linked or framed images do affect the plaintiff's markets for his images, because he uses his images to bring buyers and advertisers to his web site. The full-sized image linking takes away users' need to visit the plaintiff's site.