The 9th U.S. Circuit Court of Appeals' decision is a partial win for defendant Arriba Soft--an image search engine now known as Ditto.com--in its case against photographer Leslie Kelly. Kelly sued Arriba Soft in April 1999 for copyright infringement when the company's software had recorded miniatures, or thumbnails, and full sizes of Kelly's digital photos and made them accessible via its search engine.
The court ruled that use of thumbnail images in search engines is legal, confirming an earlier ruling by the same court from February 2002. But the court withdrew a previous decision on the display of full-size images, which it had deemed out of the bounds of fair use because it was likely to harm the market for Kelly's work.
That part of the ruling held Arriba Soft liable for copyright infringement for opening a new window to display full-size images, a practice known as in-line linking or framing. Other visual search engines have used this technique, including Google, Lycos and AltaVista. The case is now ordered to go to trial.
"As to the first action (on thumbnails), the district court correctly found that Arriba's use was fair. However, as to the second action, we conclude that (the U.S. Central District Court of California) should not have reached the issue, because neither party moved for summary judgment as to the full-size images," according to the opinion.
Steve Krongold, the plaintiff's attorney, said that despite the ruling, he is confident that they will win in a trial.
"We do not agree that displaying full-size images, which were taken from another person's Web site and used to sell products and services at Arriba Soft, is a fair use of that image," said Krongold, an attorney with Turner Green, based in Costa Mesa, Calif.
Although Ditto.com could not be immediately reached for comment, the Electronic Frontier Foundation (EFF), which filed a brief urging the court to permit Web linking to copyrighted images, viewed the ruling as a victory.
"Web site owners can rest a bit easier about linking to copyrighted materials online," EFF Senior Staff Attorney Fred von Lohmann said in a statement. "By revising its ruling, the court removed a copyright iceberg from the main shipping lanes of the World Wide Web."