Search engines using thumbnail images for Web links is fair use, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled July 8, ruling against a photographer who claimed a company infringed his copyrights by storing thumbnails of his images in a public image search engine.
Photographer Leslie Kelly's copyright infringement claim was thus sent back to trial in the U.S. Central District Court of California, which previously ruled Arriba's making and storing thumbnails of the images in question was protected by fair use.
But the 9th Circuit Court panel also said the lower court should not have ruled on whether showing larger versions of the images violated copyright, because neither Kelly nor Arriba had asked the court to judge on the larger images.
The Electronic Frontier Foundation hailed the appeals court panel ruling, with senior staff attorney Fred von Lohmann saying they'd removed "a copyright iceberg from the main shipping lanes" of the Internet. "Website owners can rest a bit easier about linking to copyrighted materials online," he said in a brief statement after the ruling.
Kelly's attorney, Steve Krongold, said in his own statement that despite the appellate panel ruling his client still had a good chance of winning the trial. He said showing full size images from one Website "to sell products and services" at another is not fair use.
Kelly specializes in imagery of the American West and displays them on his own site as well as licensing them to other sites. Writing for the panel, Judge Thomas G. Nelson said Arriba's use of the Kelly thumbnails did not "supercede" Kelly's original intentions, and that the company didn't harm Kelly's actual market and wasn't looking to profit from Kelly's work directly.
"There is no dispute that Arriba operates its Website 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," wrote Nelson. "Arriba was neither using Kelly's images to promote its Website nor trying to profit by selling Kelly's images."
Nelson said Arriba's thumbnails guided searchers to Kelly's Website, not away from it. "Even if users were more interested in the image itself rather than the information on the Web page," the judge continued, "they would still have to go to Kelly's site to see the full-size image. The thumbnails would not be a substitute for the full-sized images because the thumbnails lose their clarity when enlarged. If a user wanted to view or download a quality image, he or she would have to visit Kelly's Website."
The EFF had filed a court brief supporting Arriba, saying links "unify the Web into a single body of knowledge…They are often used in ways that do a great deal to promote the free exchange of ideas and information that is a central value of our nation."
The group argued that imposing "strict liability" on Web operators for the entire contents of sites to which the operators link "would raise grave constitutional concerns," as well as fear of liability.
