Sara Ayazi 1

In Kelly v. Arriba Soft Corp., the Ninth Circuit held that search engines' reproduction of images for use as thumbnails is a fair use under the Copyright Act.  This Recent Development critiques the Ninth Circuit's analysis in determining whether a search engine infringed on a copyright holder's rights.  The author proposes that this ruling broadened the scope of fair use on the Internet.  As a result, Kelly does not fulfill copyright law's goal of providing a balance between the rights of the copyright holder and the rights of the general public.  However, a recent ruling against the search engine Google may be one of the first steps toward curtailing search engines' power.  

I. Introduction

Since the inception of the search engine on the Internet, there has been a clash between copyright holders desperately clinging to their rights and search engines claiming their indexing function fulfills copyright law's purpose to encourage creativity for the enrichment of the public.  A search engine indexes websites on the Internet through the use of software that automatically scans and stores content available on each website into an easily searchable and accessible catalog.2 Norman Zada, president of the California-based adult entertainment company, Perfect 10, filed an injunction against the search engine Google.com (“Google”) for displaying over 3,000 images that are protected under Perfect 10's copyright.3  Perfect 10 argued that its business heavily relies on its copyrighted works and that Google's continuous infringement of these rights is “devastating to, and threatens the existence” of its business.4  Perfect 10's website, Perfect10.com, allows users to access photographs, video productions, and other materials by using a secure password in return for a monthly subscription fee.5  Searches performed using Google's visual search engine generated thousands of copies of Perfect 10's copyrighted works, which Google reproduced and displayed on its servers without permission.  Despite approximately thirty formal requests asking Google to remove the images from its search results, the search engine continued to display these images.  Perfect 10 argued that Google “is a commercial advertising operation determined to increase revenue regardless of what rights it tramples on in the process.”6

Perfect 10 set forth several arguments advancing the claim that Google's unauthorized use of its copyrighted images harmed Perfect 10's profit margin.  Perfect 10 asserted that its reduced-sized images have a commercial value.7 For example, Perfect 10 sells thousands of reduced-sized images per month for display on cell phones, a growing market estimated to be worth $500 million.8  Moreover, according to Perfect 10, Google was not only displaying thousands of Perfect 10's copyrighted images without authorization, but was also directing users to websites that misappropriated Perfect 10's images.9

Copyright holders have filed actions against search engines for copyright infringment in the past.10  In addition, as search engines continue to grow, the struggle between copyright holders and search engines will only intensify.  It has been argued that search engines are violating copyright protections under federal law11 by “scooping” images from the Internet without the permission of the creator.  However, reproducing and displaying these images may constitute “fair use” under Section 107 of the Copyright Act, a provision which excuses conduct that would ordinarily be infringement because of the existence of certain factors.12

In Kelly v. Arriba Soft Corp.,13 a landmark case with a potentially far-reaching impact for copyright law on the Internet, the Ninth Circuit held that a visual search engine's creation and use of thumbnails of copyrighted images constituted fair use.  A thumbnail is a reduced version of a full-sized image that allows users to quickly find visual information.14  According to the court, while these thumbnail images serve an aesthetic purpose, the search engine's use of the thumbnails was “transformative” in that it improved access to images on the Internet.15  This Recent Development argues that under the fair use test, Kelly wrongly held that a search engine's use of thumbnail images was transformative and that it did not have an effect on the marketplace for the copyrighted materials.  First, it will discuss the history and development of copyright law.  Second, it will examine the background of the Kelly case and then analyze the impact of this caseon a separate claim brought by Perfect 10 against Amazon.com's search engine, A9.com (“A9”).  It then will argue that Kelly overly broadened the scope of fair use on the Internet.  Finally, this Recent Development will explain how a recent ruling against Google may be one of the first steps towards curbing the ever-expanding power of search engines on the Internet.