Thumbnail and framing ruling revised

Out-Law News | 10 Jul 2003 | 12:00 am | 1 min. read

A US federal appeals court this week revised an earlier copyright ruling over a search engine that provided miniature images in search results, known as thumbnails, and linked to the original image framed within the search engine's own site.

The Ninth Circuit Court of Appeals' original ruling, issued in February 2002, caused a stir in a case brought by photographer Leslie Kelly against Arriba Soft, an image search engine now known as Ditto.com.

Kelly was upset that the search engine reproduced thumbnails of the images on his site which, when clicked, produced the full-size image in a window on Arriba's site. The page used so-called in-line linking, or framing, to display the original full-sized image, surrounded by text describing the size of the image, a link to the original web site, the Arriba banner, and Arriba advertising. (Ditto.com no longer operates with in-line linking.)

The court accepted Arriba's argument that the thumbnails themselves did not infringe copyright because they amounted to "fair use" of the originals; but a more controversial part of its ruling said that linking to the original photo by opening a new window to display the image without Kelly's permission violates his "public display" rights.

The Electronic Frontier Foundation (EFF) filed a brief urging the court reconsider the part of its ruling on linking to copyrighted images. The EFF argued that the ruling against "in-line linking" threatened to transform everyday web site activities into copyright infringements. This week the court withdrew the controversial portion of its opinion, leaving it to the lower court to take a fresh look at the issue.

On Monday, the court retained its earlier "fair use" ruling, but deleted the discussion of in-line linking.

"Website owners can rest a bit easier about linking to copyrighted materials online," said EFF attorney Fred von Lohmann. "By revising its ruling, the court removed a copyright iceberg from the main shipping lanes of the World Wide Web."

The court's revised ruling is available as a 16-page PDF