Skip to navigation

Tuesday, April 09, 2002

Linking And Thinking The EFF and, more recently, journalist Patti Waldmeir, believe the Ninth Circuit went too far in its Kelly v. Arriba decision in February. I read the case when it first came out, and thought the Court had done a good job of balancing the interests of the copyright holder Kelly against those of the Ditto search engine in aggregating and linking to information on the Web. The EFF argues "the activity that the Panel has condemned is technically indistinguishable from linking generally." Waldmeir picks up on this and says the decision threatens the legality of all linking. As I read the decision though, there was something that set Ditto's conduct apart from others linking to online material. Ditto was not just linking. Instead, Kelly's copyrighted image was displayed on Ditto's page in its original, full-sized format, exactly as it would appear on Kelly's site. The Court reasoned that the search engine could function perfectly using thumbnail images instead of full-sized ones, and that linking through a full-sized image harmed Kelly by doing away with the need to visit the originating site in order to view the image in all its full-sized glory.

Creative Commons LicenseUnless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in the Bag and Baggage weblog and any related pages, including the weblog's archives, is licensed under a Creative Commons License.