Kelly

ORDER

The Opinion filed February 6, 2002, and appearing at 280 F.3d 934 (9th Cir.2002), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

Therefore, Appellee’s petition for rehearing and the petition for rehearing en banc are DENIED as moot.

OPINION

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…