Order Code RL33810
Internet Search Engines: Copyright’s “Fair Use”
in Reproduction and Public Display Rights
January 9, 2007
Robin Jeweler
Legislative Attorney
American Law Division

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Internet Search Engines: Copyright’s “Fair Use” in
Reproduction and Public Display Rights
Summary
Hyperlinking, in-line linking, caching, framing, thumbnails. Terms that
describe Internet functionality pose interpretative challenges for the courts as they
determine how these activities relate to a copyright holder’s traditional right to
control reproduction, display, and distribution of protected works. At issue is
whether basic operation of the Internet, in some cases, constitutes or facilitates
copyright infringement. If so, is the activity a “fair use” protected by the Copyright
Act? These issues frequently implicate search engines, which scan the web to allow
users to find content for uses, both legitimate and illegitimate.
In 2003, the Ninth Circuit Court of Appeals decided Kelly v. Arriba Soft Corp.,
which held that a search engine’s online display of protected “thumbnail” images
was a fair use of copyright protected work. More recently, U.S. district courts have
considered an Internet search engine’s caching, linking, and the display of thumbnails
in a context other than that approved in Kelly. In Field v. Google, a U.S. district
court found that Google’s system of displaying cached images did not infringe the
content owner’s copyright. And in Perfect 10 v. Google, another U.S. district court
held that the search engine’s practice of in-line linking and framing was not
infringing, but that its use of thumbnail images was.
Taken together, these cases indicate a willingness by the courts to acknowledge
the social utility of online indexing, and factor it into fair use analysis; to adapt
copyright law to the core functionality and purpose of Internet, even when that means
requiring content owners to affirmatively act, such as by the use of meta-tags; and to
consider and balance conflicts between useful functions, such as online indexing and
caching, against emerging, viable new markets for content owners.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Kelly v. Arriba Soft Corp.: Thumbnail Images . . . . . . . . . . . . . . . . . . . . . . . 1
Factual and Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Ninth Circuit’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Field v. Google: Caching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Perfect 10 v. Google: In-line Linking and Thumbnail Images . . . . . . . . . . . . 7
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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Internet Search Engines:
Copyright’s “Fair Use” in Reproduction
and Public Display Rights
Introduction

Hyperlinking, in-line linking, caching, framing, thumbnails. Terms that
describe Internet functionality pose interpretative challenges for the courts as they
determine how these activities relate to a copyright holder’s traditional right to
control reproduction, display, and distribution of protected works. At issue is
whether basic operation of the Internet, in some cases, constitutes or facilitates
copyright infringement. If so, is the activity is a “fair use” protected by the Copyright
Act? These issues frequently implicate search engines, which scan the web to allow
users to find posted content. Both the posted content and the end-use thereof may be
legitimate or infringing.
In 2003, the Ninth Circuit Court of Appeals decided Kelly v. Arriba Soft Corp.,
which held that a search engine’s online display of protected “thumbnail” images
was a fair use of copyright protected work. More recently, U.S. district courts have
considered an Internet search engine’s caching, linking, and the display of thumbnails
in a context other than that approved in Kelly. In Field v. Google, a U.S. district
court found that Google’s system of displaying cached images did not infringe the
content owner’s copyright. And in Perfect 10 v. Google, another U.S. district court
held that the search engine’s practice of in-line linking and framing was not
infringing, but that its use of thumbnail images was. They are discussed below.
Kelly v. Arriba Soft Corp.: Thumbnail Images
Kelly v. Arriba Soft Corp.1 is a significant Internet copyright case arising from
the Ninth Circuit Court of Appeals. There, the court addressed the interface between
the public’s fair use rights and two of a copyright holder’s exclusive rights — those
of reproduction and public display.
Factual and Procedural Background. In Kelly, the defendant Arriba
operated a “visual search engine” that allowed users to search for and retrieve images
from the Internet. To provide this functionality, Arriba developed a computer
program that would “crawl” the Internet searching for images to index. It would then
download full-sized copies of those images onto Arriba’s server and generate lower
resolution thumbnails. Once the thumbnails were created, the program deleted the
full-sized originals from the server.
1 336 F.3d 811 (9th Cir. 2003).

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Arriba altered its display format several times. In response to a search query,
the search engine produced a “Results” page, which listed of a number of reduced,
“thumbnail” images. When a user would double-click these images, a full-sized
version of the image would appear. From January 1999 to June 1999, the full-sized
images were produced by “in-line linking,” a process that retrieved the full-sized
image from the original website and displayed it on the Arriba web page. From July
1999 until sometime after August 2000, the results page contained thumbnails
accompanied by a “Source” link and a “Details” link. The “Details” link produced
a separate screen containing the thumbnail image and a link to the originating site.
Clicking the “Source” link would produce two new windows on top of the Arriba
page. The window in the forefront contained the full-sized image, imported directly
from the originating website. Underneath that was another window displaying the
originating web page. This technique is known as framing, where an image from a
second website is viewed within a frame that is pulled into the primary site’s web
page. Currently, when a user clicks on the thumbnail, the user is sent to the
originating site via an “out line” link (a link that directs the user from the linking-site
to the linked-to site).2
Arriba’s crawler copied 35 of Kelly’s copyrighted photographs into the Arriba
database. Kelly sued Arriba for copyright infringement, complaining of Arriba’s
thumbnails, as well as its in-line and framing links. The district court ruled that
Arriba’s use of both the thumbnails and the full-sized images was a fair use.3 Kelly
appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit’s Decision. On appeal, the Ninth Circuit affirmed the
district court’s finding that the reproduction of images to create the thumbnails and
their display by Arriba’s search engine was a fair use. But it reversed the lower court
holding that Arriba’s in-line display of the larger image was a fair use as well.4
Thumbnails. An owner of a copyright has the exclusive right to reproduce
copies of the work.5 To establish a claim of copyright infringement by reproduction,
the plaintiff must show ownership of the copyright and copying by the defendant.
There was “no dispute that Kelly owned the copyright to the images and that Arriba
copied those images. Therefore,” the court ruled, “Kelly established a prima facie
case of copyright infringement.”6
2 Arriba Soft subsequently changed its name to “Ditto.com”.
3 Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (C.D. Cal. 1999).
4 An earlier decision, subsequently withdrawn by the Ninth Circuit Court of Appeals and
often referred to in judicial opinions as Kelly I, held that the in-line display of the larger
image of Kelly’s work was not a fair use and was therefore infringing. Kelly v. Arriba Soft
Corp, 280 F.3d 934 (9th Cir. 2002). In its revised opinion, referred to as Kelly II, discussed
above, the court determined that the issue of in-line linking had not been adequately raised
by the parties and should not have been decided by the district court.
5 See 17 U.S.C. §106.
6 Kelly, 336 F.3d at 817.

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However, a claim of copyright infringement is subject to certain statutory
exceptions, including the fair use exception.7 This exception “permits courts to avoid
rigid application of the copyright statute when, on occasion, it would stifle the very
creativity which that statute is designed to foster.”8
To determine whether Arriba’s use of Kelly’s images was a fair use, the court
weighed four statutorily-prescribed factors: (1) the purpose and character of the use,
including whether such use is of a commercial nature or is for nonprofit educational
purposes;9 (2) the nature of the copyrighted work; (3) the amount and substantiality
of the portion used in relation to the copyrighted work as a whole; and (4) the effect
of the use upon the potential market for or value of the copyrighted work.10
Applying the first factor, the court noted that the “more transformative the new
work, the less important the other factors, including commercialism, become”11 and
held that the thumbnails were transformative because they were “much smaller,
lower-resolution images that served an entirely different function than Kelly’s
original images.”12 Furthermore, it would be unlikely “that anyone would use
Arriba’s thumbnails for illustrative or aesthetic purposes because enlarging them
sacrifices their clarity,” the court found.13 Thus, the first fair use factor weighed in
favor of Arriba.
The court held that the second factor, the nature of the copyrighted work,
weighed slightly in favor of Kelly because the photographs were creative in nature.14
The third factor, the amount and substantiality of the portion used, was deemed not
to weigh in either party’s favor, even though Arriba copied the entire image.15
7 17 U.S.C. §107.
8 Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997).
9 The Supreme Court has held that “the central purpose of this investigation is to see ...
whether the new work merely supersede[s] the objects of the original creation, or instead
adds something new, with a further purpose or different character, altering the first with new
expression, meaning, or message; it asks, in other words, whether and to what extent the
new work is transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579
(1994).
10 17 U.S.C. § 107.
11 Kelly, 330 F.3d at 818 n. 14, citing Campbell, 510 U.S. at 579.
12 Kelly, 330 F.3d at 818. While Kelly’s images were artistic works used for illustrative
purposes and to portray scenes from the American West in an aesthetic manner, Arriba’s use
of Kelly’s images in the thumbnails was unrelated to any aesthetic purpose. Arriba’s search
engine functions as a tool to help index and improve access to images on the Internet and
their related websites.
13 Id. at 819.
14 Id. at 820.
15 While wholesale copying does not preclude fair use per se, copying an entire work
militates against a finding of fair use. However, the extent of permissible copying varies
with the purpose and character of the use. “If the secondary user only copies as much as is
(continued...)

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Finally, the court held that the fourth factor, the effect of the use on the potential
market for or value of the copyrighted work, weighed in favor of Arriba. The fourth
factor required the court to consider “not only the extent of market harm caused by
the particular actions of the alleged infringer, but also whether unrestricted and
widespread conduct of the sort engaged in by the defendant ... would result in a
substantially adverse impact on the potential market for the original.”16 The court
found that Arriba’s creation and use of the thumbnails would not harm the market for
or value of Kelly’s images.17 Accordingly, on balance, the court found that the
display of the thumbnails was a fair use.
Field v. Google: Caching
In Field v. Google,18 a U.S. district court considered a claim for copyright
infringement against the Internet search engine, Google. Field sought statutory
damages and injunctive relief against Google for permitting Internet users to access
copies of images temporarily stored on its online repository, or cache. In the course
of granting summary judgment for Google, the court explained the caching process:
There are billions of Web pages accessible on the Internet. It would be
impossible for Google to locate and index or catalog them manually.
Accordingly, Google, like other search engines, uses an automated program
(called the “Googlebot”) to continuously crawl across the Internet, to locate and
analyze available Web pages, and to catalog those Web pages into Google’s
searchable Web index.
As part of this process, Google makes and analyzes a copy of each Web page that
it finds, and stores the HTML code from those pages in a temporary repository
called a cache. Once Google indexes and stores a Web page in the cache, it can
include that page, as appropriate, in the search results it displays to users in
response to their queries.
When Google displays Web pages in its search results, the first item appearing
in each result is the title of a Web page which, if clicked by the user, will take the
user to the online location of that page. The title is followed by a short “snippet”
from the Web page in smaller font. Following the snippet, Google typically
15 (...continued)
necessary for his or her intended use, then this factor will not weigh against him or her.” Id.
at 821. Applying this principle, the court found that if Arriba only copied part of the image,
it would be more difficult to identify it, thereby reducing the usefulness of the visual search
engine. Therefore, the court concluded, it was reasonable to copy the entire image.
16 Id. at 821, citing Campbell, 510 U.S. at 590. See also, 3 M. Nimmer & D. Nimmer,
NIMMER ON COPYRIGHT § 13.05[A][4], at 13-102.61 (1993).
17 Kelly, 330 F.3d at id. The court emphasized that “Arriba’s use of Kelly’s images would
not harm Kelly’s ability to sell or license his full-sized images. Arriba does not sell or
license its thumbnails to other parties. Anyone who downloaded the thumbnails would not
be successful selling the full-sized images because of the low-resolution of the thumbnails.
There would be no way to view, create, or sell a clear, full-sized image without going to
Kelly’s websites.” Id. at 821-822.
18 412 F. Supp.2d 1106 (D. Nev. 2006).

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provides the full URL for the page. Then, in the same smaller font, Google often
displays another link labeled “Cached.”
When clicked, the “Cached” link directs an Internet user to the archival copy of
a Web page stored in Google’s system cache, rather than to the original Web site
for that page. By clicking on the “Cached” link for a page, a user can view the
“snapshot” of that page, as it appeared the last time the site was visited and
analyzed by the Googlebot.19
The court emphasized that there are numerous, industry-wide mechanisms, such
as “meta-tags,” for website owners to use communicate with Internet search engines.
Owners can instruct crawlers, or robots, not to analyze or display a site in its web
index. Owners posting on the Internet can use a Google-specific “no-archive” meta-
tag to instruct the search engine not to provide cached links to a website. In view of
these well-established means for communicating with Internet search engines, the
court concluded that the plaintiff “decided to manufacture a claim for copyright
infringement against Google in the hopes of making money from Google’s standard
practice.”20
Despite its acknowledgment of the plaintiff’s rather dubious motives, the court
nevertheless discussed the merits of the copyright infringement claims. Specifically,
the plaintiff did not claim that Google committed infringement when the Googlebot
made initial copies of Field’s copyrighted web pages and stored them in its cache.
Rather, the alleged infringing activity occurred when a Google user clicked on a
cached link to the web page and downloaded a copy of those pages from Google’s
computers.
Assuming, for the purposes of summary judgment, that Google’s display of
cached links to Field’s work did constitute direct copyright infringement, the court
considered four defenses raised by Google, and found in its favor on all counts.
Implied License. First, the court found that the plaintiff had granted Google an
implied, nonexclusive license to display the work because “[c]onsent to use the
copyrighted work need not be manifested verbally and may be inferred based on
silence where the copyright holder knows of the use and encourages it.”21 Field’s
failure to use meta-tags to instruct the search engine not to cache could reasonably
be interpreted as a grant of a license for that use.
Estoppel. The court invoked the facts supporting its finding of an implied
license to support the equitable argument that Field was precluded from asserting a
copyright claim. The court reiterated that Field could have prevented the caching,
did not do so, and allowed Google to detrimentally rely on the absence of meta-tags.
Had Google known the defendant’s objection to displaying cached versions of its
website, it would not have done so.
19 Id. at 1110-1111 (references and footnotes omitted).
20 Id. at 1113.
21 Id. at 1116.

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Fair Use. In a detailed analysis, the court concluded that Google’s cache
satisfies the statutory criteria for a fair use:
! Purpose and character of use. The search engine’s use of the
protected material is transformative. Rather than serving an artistic
function, its display of the images served an archival function,
allowing users to access content when the original page is
inaccessible.
! Nature of the copyrighted works. Even assuming the copyrighted
images are creative, Field published his works on the Internet,
making them available to world for free; he added code to his site to
ensure that all search engines would include his website in their
search listings.
! Amount and substantiality of the use. The court found that
Google’s display of entire web pages in its cached links serves
multiple transformative and socially valuable purposes. It cited the
U.S. Supreme Court’s decision in Sony Corp. v. Universal Studios,
Inc.22 and Kelly, supra, as examples where copying of an entire work
is a fair use.
! The effect of the use upon the potential market for or value of
the copyrighted work. Although the plaintiff distributed his
images on the Internet for free, he argued that Google’s activity
undercut licensing fees that he could potentially develop by selling
access to cached links to his website. The court found that there
was no evidence of an existing or developing market for licensing
search engines the right to allow access to web pages through cached
links.
! Good Faith. In addition to the statutory criteria of 17 U.S.C. § 107,
the court considered equitable factors and found the Google operates
in good faith because it honors industry-wide protocols to refrain
from caching where so instructed. Conversely, the plaintiff
deliberately ignored the protocols available to him in order to
establish a claim for copyright infringement.
The Digital Millennium Copyright Act (DMCA). Finally, the court held that
Google is protected by the safe harbor provision of the DMCA, which states that “[a]
service provider shall not be liable for monetary relief ... for infringement of
copyright by reason of the intermediate and temporary storage of material on a
system or network controlled or operated by or for the service provider[.]”23
22 464 U.S. 417 (1984)(holding that in-home recording, i.e.,”time-shifting” of free broadcast
tv is a fair use).
23 17 U.S.C. § 512(b).

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Perfect 10 v. Google: In-line Linking and Thumbnail Images
More recently, a U.S. district court in the Ninth Circuit revisited several of the
issues addressed in Kelly. In Perfect 10 v. Google,24 the court considered the issue
of thumbnails in a different context. P10 filed suit against Google claiming, among
other things, direct, contributory, and vicarious copyright infringement.
Perfect 10 (P10) publishes an adult magazine and operates a subscription
website that features copyrighted photographs of nude models. Its proprietary
website is not available to public search. Other websites, however, display, without
permission, images and content from P10. Google, in response to image search
inquiries, displayed thumbnail copies of P10’s photos, and linked to the third-party
websites which hosted and served the full-sized, infringing images.
As framed by the court, the issues before it pit IP rights against “the dazzling
capacity of internet technology to assemble, organize, store, access, and display
intellectual property ‘content’[.] ...[The] issue, in a nutshell, is: does a search engine
infringe copyrighted images when it displays them on an ‘image search’ function in
the form of ‘thumbnails’ but not infringe when, through in-line linking, it displays
copyrighted images served by another website?”25
For the reasons discussed below, the court found that Google’s in-line linking
to and framing of infringing full-size images posted on third-party websites was not
infringing, but that its display of thumbnail images is likely to be considered
infringing.26
Linking and Framing. With respect to in-line linking and framing of full-size
images from third-party websites, the court considered, not whether the activity was
infringing, but a more preliminary question. Is linking or framing a “display” for
copyright purposes? If it does not come within the ambit of the copyright holder’s
exclusive rights, it is not necessary to reach the question of copyright infringement.
Linking is a basic function of the Internet. The term “hyperlinking” is used to
describe text or images, that when clicked by a user, transport him to a different
webpage. “In-line linking” is somewhat different. It refers to the process whereby
a webpage incorporates by reference content stored on and served by another website.
The parties before the court offered two theories for considering whether in-line
linking is a display: the “server” test advocated by Google and the “incorporation”
test advocated by P10. The server test defines a display as the “act of serving content
over the web — i.e., physically sending ones and zeroes over the internet to the user’s
24 416 F. Supp.2d 828 (C.D.Ca. 2006).
25 Id. at 831.
26 Because the action before the court was a motion for a preliminary injunction, the court
cast its findings as “probabilities of success” on the various claims.

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browser.”27 The “incorporation” test would adopt a visual perspective wherein a
display occurs from the act of incorporating content into a webpage that is pulled up
by the browser. P10 argued that the webpage that incorporates the content through
in-line linking causes the “appearance” of copyrighted content and is therefore
“displaying” it for copyright purposes, regardless of where it is stored.
Reviewing precedent, the court acknowledged that there is substantial authority
to the effect that traditional hyperlinking does not support claims of direct copyright
infringement because there is no copying or display involved.28 But there is little
discussion of in-line linking.29
The court adopted the “server” test and held that a site that in-line links to
another does not itself “display” the content for copyright purposes. Among the
reasons given for its determination is that the server test is more technologically
appropriate and better reflects the reality of how content travels over the Internet.
Further it viewed the server test as liability “neutral.” Application of the test doesn’t
invite infringing activities by search engines, nor does it preclude all liability. It
would, more narrowly, “preclude search engines from being held directly liable for
in-line linking and/or framing infringing content stored on third-party websites.”30
The direct infringers were the websites that “stole” P10’s full-size images and posted
them on the Internet. Finally, the court reasoned, that
[T]he server test maintains, however uneasily, the delicate balance for which
copyright law strives — i.e., between encouraging the creation of creative works
and encouraging the dissemination of information. Merely to index the web so
that users can more readily find the information they seek should not constitute
direct infringement, but to host and serve infringing content may directly violate
the rights of copyright holders.”31
Thumbnail Images. Applying the server test to the thumbnail images, it was
clear that Google did display them. Google acknowledged that it copied and stored
them on its own servers. The issue then becomes, like that in Kelly, whether
Google’s use of P10’s images as thumbnails is a fair use. Analyzing statutory fair
use criteria, the court concluded that Google’s use of the thumbnails was not a fair
use:
Purpose and character of use. Google’s use of the thumbnails was a
commercial use; it derived commercial benefit in the form of increased user traffic
and advertising revenue. In Kelly, the Court of Appeals acknowledged that Arriba’s
27 Id. at 839.
28 Id. at 842.
29 The Ninth Circuit found it to be copyright infringement in its subsequently withdrawn
opinion in Kelly I. See note 4 supra.
30 Id. at 844.
31 Id. (emphasis in original). Conversely, “[t]o adopt the incorporation test would cause a
tremendous chilling effect on the core functionality of the web — its capacity to link, a vital
feature of the internet that makes it accessible, creative, and valuable.” Id. at 840.

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use of thumbnails was commercial, yet concluded that search results were more
“incidental and less exploitative” than other traditional commercial uses. Here, the
commercial nature of Google’s use was distinguishable because Google derived
specific revenue from an ad sharing program with the third-party websites that hosted
the infringing images.
P10 had entered into a licensing agreement with others for the sale and
distribution of its reduced-size images for download to and use on cell phones. A
significant factor supporting a finding of fair use is a court’s determination that the
use is transformative, discussed supra. Although the court found that Google’s use
of thumbnails to simplify and expedite access to information was transformative, it
found it to be “consumptive” as well, i.e., the use merely supersedes the object of the
original instead of adding a further purpose or different character. Google’s
thumbnails superceded, or usurped, the market for the sale of reduced-size images,
because cell phone users could download and save the images directly from Google.
Nature of the copyrighted works. Use of published works, including images,
are more likely to qualify as a fair use because the first appearance of the creative
expression has already occurred.
Amount and substantiality of the use. As in Kelly, the court found that Google
used no more of the image than necessary to achieve the objective of providing
effective image-search capability.
The effect of the use upon the potential market for or value of the copyrighted
work. While Google’s use of thumbnails did not harm the market for copyrighted
full-size images, it did cause harm to the potential market for sales of P10’s reduced-
size images to cell phone users.
The court also considered and rejected P10’s allegation that Google was guilty
of contributory and vicarious copyright infringement liability.
Conclusion
It is no coincidence that search engines are frequently-named defendants in
online copyright infringement litigation. Their role in Internet connectivity is vital.
The infringement liability implications of that role are arguably more complex than
a preliminary determination whether an individual website is posting infringing
content.
In the DMCA, Congress amended the Copyright Act to create a safe harbor for
the Internet Service Provider that operates as a “passive conduit” for transmission
and exchange of third-party offerings. As the sophistication of Internet mass-
offerings grow, from text and images to broader audiovisual formats, the function of
the search engines is likely to increase in scope and sophistication as well. A
valuable component is the actual search and indexing function which enables
Internet users to post and find content. Most prominent search engines are, however,
commercial, profit-making entities who benefit from traffic generated by their search
capabilities. Providing search capability creates and satisfies an important market.

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As the courts apply traditional copyright principles to the Internet, they must
factor in its functionality and architecture. In Kelly, the Ninth Circuit grappled with
the concept of displaying thumbnail images as a search tool. It found the use to be
highly transformative, socially valuable, and “fair,” but reserved judgment on the
questions of in-line linking and framing. In Field, the district court considered
caching, finding it to be fair as well. Of great significance to the court was the fact
that content owners can control the ability of search engines to search and/or cache
their websites. In Perfect 10, a district court considered thumbnail displays in a
different context: namely, where a search engine displays thumbnails of infringing
images and derives advertising revenue that is more closely linked to the posting.
The plaintiff also made a compelling showing that the thumbnails, though
transformative of the full-size images, could or would undermine a developing
market for reduced-size images. The court also took up where Kelly left off, and
found that in-line linking and framing were not displays for copyright purposes.
Taken together, these cases indicate a willingness by the courts to acknowledge
the social utility of online indexing, and factor it into fair use analysis; to adapt
copyright law to the core functionality and purpose of Internet, even when that means
requiring content owners to act affirmatively, such as by the use of meta-tags; and to
weigh and balance conflicts between useful functions, such as online indexing and
caching, against emerging, viable new markets for content owners.

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