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Tuesday, February 12, 2002

Fair Use Parameters For Deep Linking: It is pretty astounding, since most of the internet routinely relies on deep linking, that the legality of this practice remains the subject of such vigorous debate. Courts have had a difficult time determining when copyright or other laws might curatil links to other sites, particularly when the link circumvents a site's home page (where advertising, terms of use or disclaimers might be displayed). Last year, two federal trial courts in California reached opposite conclusions about how aggregation sites - like My Simon, or Best Book Buys, for example - are permitted to link to content within other sites. In one of those cases, Central District Judge Harry Hupp observed that purely factual material is not copyright protected, and providing a fact-based link - that states, for example, that Ticketmaster sells tickets for a given concert at a given price - is perfectly acceptable. According to Judge Hupp, "What is protectable is the manner in which the idea or knowledge is expressed. Thus, Longfellow was free to take the famous facts of the ride of Paul Revere and tell the story in his own incomparable words - no one can copy the words, but anyone may tell the story in his own words (if not as well). The major difficulty with many of plaintiff's theories and concepts is that it is attempting to find a way to protect its expensively developed basic information what it considers a competitor and it cannot do so." Judge Hupp's reasoning was not taken up, however, by his colleague Judge Ronald Whyte in considering a similar case involving eBay. Judge Whyte found the actions of auction aggregator Bidder's Edge to be a prohibited trespass, and granted a preliminary injunction against that company that played a role in its ultimate demise. Had either of these cases continued, the Ninth Circuit Court of Appeals would have had the chance to consider the legaility of aggregation and deep linking. However, both cases were resolved before appeal. The linking question thus has remained an open one in this jurisdiction and others. (To appreciate the global scope of this debate, pay a visit to Stefan Bechtold's Link Controversy Page.) Recently, the Ninth Circuit has helped clarify at least the copyright portion of the analysis. In its February 6, 2002 Kelly v. Arriba Soft Corporation decision, the Court considered whether the visual search engine - which displays results as images - infringed the copyrights of Leslie Kelly, who exhibits California gold country photographs throughout his web site. As a visual search engine Ditto displayed two types of images - thumbnails, and, when the thumbnails were clicked, full-sized images - by inline linking to their original location. In other words, Ditto did not download images to its own servers, but imported them directly from other sites. The Court concluded that Ditto's thumbnail links were a fair use under U.S. copyright law, but that displaying the full-sized images was not, and instead constituted copyright infringement. The Court's analysis turned on the four "fair use" factors identified by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1974), and applied those factors to the types of images that Ditto was displaying. Concerning the thumbnails, Ditto fell within the fair use doctrine because the use was "unrelated to any esthetic purpose," and instead functioned "as a tool to help index and improve access to images on the internet and their related web sites." Ditto's purpose in displaying the thumbnail links was not "artistic expression" - in contrast to Kelly's use of the pictures on his site to illustrate and add to the attractiveness of his presentation. The thumbnail image links did not "supplant the need for the originals," but rather benefitted the public "by enhancing information gathering techniques on the internet." The thumbnail links also did no harm to the market or value of the images as used on Kelly's site; in fact, they had just the opposite effect: "By showing the thumbnails on its results page ... the search engine would guide users to Kelly's web site rather than away from it. Even if users were more interested in the image itself rather than the information on the page, they would still have to go to Kelly's site to see the full-sized image." Ditto's use of full-sized image links was a different story, however, and did not fall within the fair use doctrine. Providing full-sized images did not increase the functionality of the search engine, and could - in contrast to the thumbnail links - discourage users from visiting the originating site. As the Court observed, "any user who is solely searching for images would not need to do so," since the search engine itself provided what the user was after. The Ninth Circuit thus has struck a reasonable balance in its Kelly decision by respecting copyrights while also acknowledging that links to copyrighted material can serve the selfsame goals. As the Court observed, "The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike." By finding Ditto's thumbnail linking to be a fair use, the Court helped ensure "the potential future use of artistic works for purposes of teaching, reasearch, criticism and news reporting," as contemplated by the overall framework of the copyright laws. Presumably as the result of the decision, the search engine no longer provides search result links in full-sized image format. (And, presumably because Ditto no longer wants to promote the site of someone who sued it, Ditto produces no results at all for "Leslie Kelly" or his "ShowMeTheGold" domain).

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