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Kelly v. Arriba Soft Corp.

280 F.3d 934 (2002)

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Kelly v. Arriba Soft Corp.

United States Court of Appeals for the Ninth Circuit
280 F.3d 934 (2002)

MJ

Facts

Arriba Soft Corporation (Arriba) (defendant) operated a search engine. When users accessed the search engine, the website would produce a series of small images of results, known as thumbnails. These images were gathered by a computer program that searched the internet for photographs, downloaded full-size versions, and turned them into lower-resolution, smaller thumbnails. If a user double-clicked on a thumbnail, the user could access the full-size image. Leslie Kelly (plaintiff) was a photographer of the American West. Many of his images were on various websites. Arriba’s software downloaded Kelly’s images and placed them on the search engine. Kelly never gave Arriba permission to do so. After Kelly complained, Arriba placed the relevant websites on a list it would not access in the future. Kelly sued Arriba for copyright infringement. The district court agreed that Kelly had made a prima facie showing of copyright infringement. However, the court also ruled that Arriba’s actions constituted fair use, holding that two factors weighed in favor of the company: (1) the use was transformative, and (2) the use did not harm the market value for Kelly’s works. Kelly appealed.

Rule of Law

Issue

Holding and Reasoning (Nelson, J.)

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