As highlighted by the music industry’s fierce battle against Napster and other file-trading services, American courts have recently faced a wave of litigation involving the application of copyright law to the Internet. While the legal wars surrounding mp3s and DVDs have captured the public interest, another important dimension of Internet copyright law—hyperlinking—has received relatively little popular attention. In Kelly v. Arriba Soft Corp., a three-judge panel of the Ninth Circuit considered a copyright infringement claim brought by photographer Leslie Kelly against the operator of the visual search engine Ditto.com, Inc. (formerly Arriba Soft Corporation). Ditto.com’s search engine provides results in the form of small pictures called thumbnails, as opposed to the traditional text display of most Internet search tools. When an Internet user clicks on a thumbnail, a full image is transmitted from the website of the image’s owner and appears in another window next to the existing window containing the Ditto.com site. Seeking to impose liability for direct infringement, Kelly argued that Ditto.com’s linking to full-size versions of his photos of the American West violated his exclusive right to publicly display his copyrighted images.
While acknowledging that no case had ever directly considered this kind of public display rights argument, the Ninth Circuit nonetheless ran with Kelly’s new legal creation and found Ditto.com liable for direct copyright infringement. In supporting its decision, the court emphasized that Ditto.com could not be considered a passive conduit that merely passed along copyrighted works because of the active role that the search engine took in presenting Kelly’s photographic images. According to the court, the search engine infringed upon Kelly’s public display rights because it affirmatively sought out his images on the Internet and then “in-line linked” them within its own website. The court drew analogies to two district court cases in which a web site owner and the operator of an electronic bulletin board were held liable for making Playboy Magazine’s copyrighted images available for download to their Internet subscribers.
The panel’s decision may have important ramifications in two different respects. Regarding the world of intellectual property, the Ninth Circuit has provided copyright holders with a new legal theory that they can utilize to protect their works in the digital context. Considered from a larger perspective, the court’s ruling could also influence the future shape of the Internet itself. Because it can be interpreted to impose direct copyright infringement liability for hyperlinking without permission, Kelly v. Arriba Soft may lead website operators to exercise a greater degree of caution when deciding whether to link to other sites on the Internet. Faced with the possibility of copyright violations for unauthorized linking, website operators could react by seeking permission from the owners of all the sites to which they want to connect. Another potential effect of the Ninth Circuit’s decision could be to discourage linking altogether, a development that could place new constraints on the Internet and could damage its ability to function as a global interconnected medium.
Because of Kelly v. Arriba Soft’s novelty, the full consequences of the ruling will only emerge after other jurisdictions have the opportunity to consider the public display rights argument as applied to Internet linking. Whether or not other courts choose to accept the Ninth Circuit’s reasoning, Kelly v. Arriba Soft represents an intriguing attempt to assert off-line proprietary rights within the free-flowing on-line world of the Internet.
RELATED LINKS:
NetCopyRightLaw site on Kelly v. Arriba Soft
