TRACY ANN WARD LIBM 6320 DR. RICKMAN A Picture is Worth…? A Case Study of Kelly v. Arriba Soft Corp.

Case Summary Defendant, Arriba constructed a visual search engine on the Internet. Web site allowed full retrieval of around two million images, as opposed to merely “thumbnail,” photographs, or pictures. Plaintiff Kelly, specialized in photographs of California gold rush country, and had his images housed on two Web sites. Ditto operated a “crawler” that travels through the Web in search of images to be converted into the photographs and added to the index. Approximately thirty-five of the plaintiff’s images were indexed by the Ditto crawler and made available to users of this virtual search engine. Plaintiff objected to use of his images from Plaintiff’s site, and sought relief from the court by filing an order in copyright infringement. Plaintiff also alleges one or more violations of the Digital Millennium Copyright Act (DMCA).

Copyright Infringement Decision Plaintiff must show:  ownership of copyright  valid copyright  breach of exclusive right of copyright holders In this case, the defendant did not dispute validity of owner’s copyright. Furthermore, defendant did not dispute use of the Plaintiff’s photography. Summary of the Applicable Law

Violation of Fair Use Fair use if found in Title 17: U. S. C.§ 106(1), codified at 17 U.S.C. § 107, which provides: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case if a fair use the factors to be considered shall include—  the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;  the nature of the copyrighted work;  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and  the effect of the use upon the potential market for or value of the copyrighted work.

Decision Information The commercial value versus fair market use was of uncertain determinability in this particular case; however, the court found the Plaintiff could be adversely affected vis a vis value for promotional purposes by the two x two rule. Two factors weighed in the favor of harm and two waived against fair use. The court stated, however, that the first factor of fair use is the most important in this case. The defendant never held out the work to be it’s own.

And, what had happened was… The court, having weighed all of the factors of § 107 found defendants conduct constituted fair use of Plaintiff’s images as to the copyright infringement claims. The court also concluded there was no violation of DMCA § The court of appeals in the 9 th 336 F. 3d 811 reversed the lower court in 2003 holding that reproduction of images to create the thumbnails by Arriba Soft’s search engine was fair use and in the display of the full size image was full use as well. The court withheld the in line link decision and remanded to the lower court for reconsideration. Having failed to reach a settlement after entering a default judgment on the remaining issues (by this time, Arriba had gone out of business), there was no one to settle with Kelly. Arriba Soft Corporation (a.k.a. Ditto.com) was cast in judgment for 345,000 dollars plus reasonable attorney fees of These costs will never be recovered because the company is out of business.

Case Reflection The copyright issues surrounding this case are quite complicated. Although fair use covers so many factors, it seems that the photographer should at least be entitled to reproduction of his work through permission. This was never done, and consequently, his work was distributed without permission across the Web. Many of us grab and use these images often as they are easily accessible. Perhaps we should exercise more caution when freely using things that are clearly marked as being copyrighted or belonging to someone else. It is a downfall and loophole of the law that no one can be held accountable for the damages in this case. That one company can fold, only to open under another name, should not excuse decisions made in the business world.

References Electronic Frontier Foundation. (n.d.). Kelly v. Arriba Soft. Retrieved November 6 th, 2011, from IT Law Wiki. (n.d.). Kelly v. Arriba Soft. 336 F.3d 811 (9 th Cir. 2003) full text. Retrieved November 6th, 2011, from Copyright Casebook. (n. d.). Kelley [sic.] v. Arriba Soft Corp. Retrieved November 6th, 2011, from Samson, M. (2007). Leslie A. Kelly v. Arriba Soft Corporation. Internet Library of Law and Court Decisions. Retrieved November 6th, 2011, from United States District Court Central District of California Southern Division. (n.d.). Leslie A. Kelly, et al. Plaintiff, vs. Arriba Soft Corp., et al. Defendants. Case No. SA CV GLT[JW]. Retrieved November 6 th, 2011 at Wikipedia. Kelly v. Arriba Soft Corporation. (2011). Retrieved November 6th, 2011, from