San Francisco - A federal appeals court today changed course in a closely watched case on the legality of linking on the World Wide Web, issuing a revised ruling siding with search engine Ditto.com against photographer Leslie Kelly. The Electronic Frontier Foundation (EFF) had filed a brief urging the court to permit Web linking to copyrighted images.
The Ninth Circuit Court of Appeals' original ruling, issued in February 2002, caused a stir by saying that linking to a copyrighted photo on a website without permission violates the copyright owner's "public display" rights.
The EFF urged the court to reconsider this portion of its ruling, arguing that the ruling against "in-line linking" threatened to transform everyday website activities into copyright infringements. Today the court withdrew the controversial portion of its opinion, leaving it to the lower court to take a fresh look at the issue.
"Website owners can rest a bit easier about linking to copyrighted materials online," said EFF Senior Staff Attorney Fred von Lohmann. "By revising its ruling, the court removed a copyright iceberg from the main shipping lanes of the World Wide Web."
Ditto.com is a search engine that helps people find publicly available image files on the Web. For example, the Ditto website would show someone who enters a search for "sailboat" a selection of images of sailboats from around the Web. Ditto presented each image in a miniature form, known as a thumbnail, and provided links that would allow the searcher to open a full-size version of the image in a new web browser window. Leslie Kelly, a photographer, sued Ditto after Kelly discovered that Ditto had indexed his website and the images found there.
In its original ruling, the Ninth Circuit found that Ditto.com's use of thumbnail images was allowed under the copyright law doctrine of "fair use," but held Ditto.com liable for copyright infringement for opening a new window to display the image. Numerous other Web search engines, including Lycos, Google, and Altavista, use this technique, known as "in-line linking" or "framing." Today, the court retained its earlier "fair use" ruling, but deleted the discussion of in-line linking.
The case title is Kelly v. Arriba Soft Corp., No. 00-55521, originally decided on February 6, 2002, and revised on July 7, 2003. Arriba Soft is the former name of Ditto.com Inc.
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
+1 415 436-9333 x123 (office)
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org
+1 415 436-9333 x125 (office)
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/
