Challenging Search Engines and Pop-Ups Under Copyright Law: Part 2

In the May-June 2002 issue of IEEE Micro, part 1 of “Challenging search engines under copyright law” appeared with the promise of a part 2 if the US Court of Appeals on the West Coast ever came to its senses and revised its opinion in Kelly v. Arriba Soft.The opinion condemned as illegal what it called “framing” and seemingly condemned as well all hyperlinking to which the linked site did not consent. The losing party, a company operating an image search engine then called Arriba Soft, seconded by numerous amici curiae (friends of the court), immediately filed papers asking the court to reconsider and refrain from destroying the Internet. Nothing happened for 16 months as the court considered what to do next. But the shoe has now finally dropped. The court issued a revised opinion, dodging the issue entirely on procedural grounds. Background The Arriba Soft image search engine was much like the present Google image search engine (www.google.com). If a user entered a search word or phrase, say “Gold Rush,” the engine would go to its index file and present an array of thumbnail images having some relation to the Gold Rush. (Thumbnails are small images in GIF or JPEG format that have much lower resolution than the originals.) The idea is that a user can readily scan a page of images for use much more quickly and easily than wading through verbal descriptions. For an example, see http:// images.google.com/images?q=%22gold+ rush%22&ie=UTF-8&oe=UTF-8&hl= en&btnG=Google+Search. (This will provide you with an array of reduced-size versions of images related to the Gold Rush, one of the first of which is a book cover, which will be used below as an illustrative example.) One of the many Web pages that Arriba’s spider program sought out for images was that of Leslie A. Kelly. Unlike many other Web page proprietors, Kelly objected violently to having users access his site via an image search engine. His grievance, as refined after several years of litigation, was that Arriba deep-linked to individual photographic images on his Web page, using a thumbnail image to identify Arriba’s link. For example, at the preceding URL, if you click on the cover image for the book The Gold Rush, your browser will recognize it as a hyperlink to continued on p. 71