## Facts

- Leslie A. Kelly was a professional photographer who marketed photographs through books and commercial websites.
- Arriba Soft Corp. operated an Internet image search engine that indexed images and displayed search results as reduced “thumbnail” images.
- Arriba’s automated crawler copied images from the web, created thumbnails, and stored them in a database; employees screened thumbnails for relevance and appropriateness.
- Clicking a thumbnail opened a window showing the image, its attributes (including dimensions), and the URL of the source website, which users could follow to the original site.
- Arriba copied Kelly’s photographs from Kelly’s websites, converted them to thumbnails, and displayed them in search results without authorization.
- Kelly alleged copyright infringement based on Arriba’s copying and display and alleged a DMCA violation for removal or alteration of copyright management information (CMI).

## Issues

1. Whether Arriba’s unauthorized copying and display of Kelly’s photographs as thumbnails infringed copyright, and whether the conduct was protected by fair use under 17 U.S.C. § 107.
2. Whether Arriba violated 17 U.S.C. § 1202 by removing or altering CMI, or by distributing works knowing CMI had been removed or altered.

## Decision

- The court held Arriba’s copying and storage of the images constituted prima facie copyright infringement.
- The court granted partial summary judgment for Arriba on the copyright claim, holding the thumbnail use was fair use under the circumstances.
- The court granted partial summary judgment for Arriba on the DMCA § 1202 claim, finding no removal or alteration of CMI by Arriba and no statutory violation.
- The court denied Kelly’s cross-motion for partial summary judgment.

## Legal Principles

- Copying and storing copyrighted images for use in an image search engine can constitute prima facie infringement, but may be excused by fair use.
- Fair use analysis applies the four statutory factors; a transformative indexing function and lack of market harm can outweigh the creative nature of photographs and copying the entirety of the works.
- Use of reduced-size thumbnails as search “pointers” can be transformative when the function differs from the copyright owner’s expressive or commercial use.
- DMCA § 1202 liability requires proof of removal or alteration of CMI (or knowing distribution of works with removed/altered CMI); automated copying and thumbnail generation, without evidence of such conduct or knowledge, is insufficient.
- Providing a link back to the originating site where copyright information remains available supported the absence of a § 1202 violation on the record presented.

## Conclusion

The court held that an image search engine’s unauthorized creation and display of thumbnail versions of copyrighted photographs was fair use due to its indexing purpose and lack of market harm, and it rejected DMCA § 1202 claims absent evidence that the defendant removed or altered copyright management information or knowingly distributed works with such information removed.


Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (C.D. Cal. 1999)