08 July 2003

The Ninth Circuit confirmed a decision that at first blush concerns only photographers, but actually implicates concerns for all creators of copyrighted material. Kelly v. Arriba Soft Corp. (9th Cir., revised Jul. 8, 2003) (PDF, 43k). A photographer (Kelly) objected to the appearance of his copyrighted photographs grabbed from his website in Arriba Soft's search engine. The Ninth Circuit made two holdings:

(1)  Thumbnail images of the photographs appearing in the search engine results satisfied the requirements for fair use; but

(2)  Using those thumbnail images as links to the full-sized photographs did not, when the links displayed the full-sized photographs as if they were hosted on Arriba Soft's own website, thereby implying that the photographs were Arriba Soft's property.

It is not clear from the opinion whether it limits itself to the HTML concept of "framing" or uses the more-general artistic concept of "framing." For our purposes, it doesn't matter. By analogy, including an abstract or relatively short quotation from an article or webpage in a search engine or index would qualify as fair use, but linking to that material so that it appears as part of the search engine's or index's own content would not. One good practice is to set link targets to open new windows, like this:

<a href="[link]" target="_blank">[description]</a>

Some idiot over on Slashdot, however, has proclaimed that this means that keeping MP3s on a website therefore constitutes fair use. Not a chance. First of all, MP3s of entire songs are not comparable to "thumbnails," as thumbnails are perceptually of vastly inferior quality to the original, and no reasonable person would accept a thumbnail as a substitute for the original artwork. Conversely, the whole point of Napster, etc. is to "trade" files that many otherwise reasonable persons would accept as substitutes for the original (presumably CD) piece of music. Secondly, the underlying concern—admittedly, not very clearly expressed—is not the unfair trade practice of making the full-sized photographs appear as if Arriba Soft owned them; it is the copyright infringement of removing the correct attribution from the display of the full-sized photographs. Thus, the Ninth Circuit skates ever closer to finding that there is an implicit moral right (droit morale) to be named as the author/creator of a copyrighted work. <SARCASM> That this is common sense and good manners indicates why US copyright law does not consider it explicitly. </SARCASM> MP3s, when hosted in a searchable manner (whether on a webpage or through a P2P system), explicitly do not acknowledge the (legal, but not necessarily morally correct) copyright holder in the specific recordings: the record company.