Linking: The Ninth Circuit Withdraws Arriba Opinion

1/1/2004

The legal status of Web linking has been explored in a number of legal opinions and continues to be controversial. The Ninth Circuit added to the debate in July 2003 when it withdrew and reissued its opinion in Kelly v. Arriba Soft Corp., which had held that merely linking to a Web page that contains copyrighted photographs constitutes copyright infringement. The case involved a search engine that crawls the Web, "looking for images to index," and then displays search results in the form of "thumbnail" versions of these images, rather than in the more usual form of text. By double-clicking on the thumbnail images, the user can "display the original full-size image, surrounded by text describing the size of the image, a link to their original website, the Arriba banner, and Arriba advertising." In other words, clicking on the thumbnail "in-links" the full image into the linking webpage. In its revised opinion the court held that displaying the thumbnail images in the search results constitutes "fair use" and is not infringing. But it withdrew its holding as to the full sized images, finding that that issue could not be resolved on summary judgment.

An "in-line link" or "in-link" instructs the user's browser to retrieve the linked-to image from the source Web site and display the image on the user's screen, but it does so without leaving the Web page that contains the link. The linked-to image is not copied onto Arriba's server; however, because of the manner in which the image is displayed, the user may not realize that it actually resides on another Web site.

The court held in its initial February 2002 opinion that the display of thumbnails constitutes "fair use" under the copyright statute but found that "in-line linking" to the full-size images constitutes copyright infringement. It was the latter ruling that the court withdrew in its revised opinion, issued on July 7, 2003. The court initially held that merely providing the "capability" to view the larger images, surrounded by Arriba's own text, graphics and advertising, constituted copyright infringement.

Comment: The ruling that use of "thumbnails" constitutes fair use seems correct. The status of "in-linking," sometimes referred to as "framing," remains uncertain. This opinion demonstrates that courts are still struggling to apply copyright law principles to various forms of linking and that some linking activities, particularly "in-linking" or "framing," are still controversial and legally hazardous. One is reminded of the DVD encryption case, Universal City Studios, Inc. v. Corley, 273 F.3d 429, 2001 Copr.L.Dec. P 28,345, 2002 Copr.L.Dec. P 28,381, 60 U.S.P.Q.2d 1953, 2nd Cir.(N.Y.), Nov 28, 2001, in which the court enjoined simply providing a link to a Web site where the decryption information could be found. Other courts have enjoined linking from a pornography site or linking to a site containing pirated materials. No one said that applying traditional legal rules to the Wild West world of the Internet was going to be easy.

Jere M. Webb
503.294.9460
jmwebb@stoel.com