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Search engines can display “thumbnails,” but not full-sized images of copyrighted works on their Web sites, the 9th U.S. Circuit Court of Appeals ruled Wednesday. Setting parameters for copyright infringement on the Internet, the court found that reproducing photographs to create thumbnail images is a fair use of the material, but displaying full-sized images violates the copyright owner’s exclusive right to publicly display his works. In Kelly v. Arriba Soft Corp., 00-5521, a photographer claimed the search engine Arriba (now named Ditto.com) violated his copyright by reproducing and displaying images without permission. A lower court ruled that such use of Kelly’s works was a fair use exception to the Copyright Act. Regarding the thumbnail images, the 9th Circuit said Arriba’s use of Kelly’s photographs was transformative — improving access to information on the Internet — and did not harm the market for Kelly’s original images. But the court found that displaying the full-sized images through linking and framing was not transformative and harmed the market for the original photographs. “While it was necessary to provide whole images to suit Arriba’s purpose of giving users access to the full-sized images without having to go to another site, such a purpose is not legitimate,” Judge Thomas Nelson wrote. The 9th Circuit sent the case back to the district court to determine damages for copyright infringement and whether an injunction is necessary. “It’s a validation of advancements in technology,” said Arriba’s counsel Judith Jennison, a partner in the San Francisco office of Seattle’s Perkins Coie. She said there is no evidence that anyone accessed the full-sized images of Kelly’s works through Arriba’s site and that this would be relevant to the question of damages. Jennison also said the issue of inline linking and framing was not a key point to the case since Arriba had abandoned the practice years ago. But other IP attorneys regarded this as the crucial part of the 9th Circuit’s ruling since it appears to be the first time an appellate court has addressed inline linking and framing. “This is a fascinating case,” said Annette Hurst, a partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco. “It’s basically going to do away with linking or framing without permission.”

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