Kelly

This case involves the application of copyright law to the vast world of the internet and internet search engines. The plaintiff, Leslie Kelly, is a professional photographer who has copyrighted many of his images of the American West. Some of these images are located on Kelly’s web site or other web sites with which Kelly has a license agreement. The defendant, Arriba Soft Corp., operates an internet search engine that displays its results in the form of small pictures rather than the more usual form of text. Arriba obtained its database of pictures by copying images from other web sites. By clicking on one of these small pictures, called “thumbnails,” the user can then view a large version of that same picture within the context of the Arriba web page.

When Kelly discovered that his photographs were part of Arriba’s search engine database, he brought a claim against Arri-ba for copyright infringement. The district court found that Kelly had established a prima facie case of copyright infringement based on Arriba’s unauthorized reproduction and display of Kelly’s works, but that this reproduction and display constituted a non-infringing “fair use” under Section 107 of the…