site, Arriba created a public display of Kelly’s works. ... Allowing this capability is enough to
establish an infringement; the fact that no one saw the images goes to the issue of damages, not
liability.”^555
The court went on in its 2002 opinion to hold that Arriba’s display of Kelly’s full-sized
images was not a fair use. Unlike the case of the thumbnails, the court held that the use of the
full-sized images was not transformative. “Because the full-sized images on Arriba’s site act
primarily as illustrations or artistic expression and the search engine would function the same
without them, they do not have a purpose different from Kelly’s use of them.”^556 Accordingly,
the first factor weighed against fair use. For the same reasons as before, the second factor
weighed slightly in favor of Kelly.^557 The third factor weighed in favor of Kelly because,
although it was necessary to provide whole images “to suit Arriba’s purpose of giving users
access to the full-sized images without having to go to another site, such a purpose is not
legitimate.”^558 Finally, the fourth factor weighed in Kelly’s favor, because “[b]y giving users
access to Kelly’s full-sized images on its own web site, Arriba harms all of Kelly’s markets.”^559
The Ninth Circuit’s ruling in its 2002 decision on the public display issue generated a lot
of controversy, since the reach of that ruling was potentially so broad. In particular, the logic the
Ninth Circuit adopted in its 2002 decision – that the mere act of inline linking to or framing of a
work, whether or not users actually view the linked work – constitutes a public display of the
linked work, could call into question the legality of many types of linking or framing that has not
been expressly authorized by the owner of the linked material. Apparently in response to the
controversy, on Oct. 10, 2002, the Ninth Circuit ordered additional briefing on issues of public
display and derivative use rights raised by the case.^560
In its 2003 decision, the Ninth Circuit omitted entirely the discussion of the public
display right that had appeared in its 2002 decision. Instead, the court held that the district court
should not have decided whether the display of the full-sized images violated Kelly’s public
display rights because the parties never moved for summary judgment on that issue.^561 In the
proceedings below, Kelly had moved only for summary judgment that Arriba’s use of the
thumbnail images violated his display, reproduction and distribution rights. Arriba cross-moved
for summary judgment and, for purposes of the motion, conceded that Kelly had established a
prima facie case of infringement as to the thumbnail images, but argued that its use of the
thumbnail images was a fair use. The Ninth Circuit concluded that, by ruling that use of both the
thumbnail images and the full-sized images was fair, the district court had improperly broadened
(^555) Id. at 946.
(^556) Id. at 947.
(^557) Id. at 947-48.
(^558) Id. at 948.
(^559) Id.
(^560) “Ninth Circuit Orders Added Briefs on Hyperlinking Issues in Arriba Soft Appeal,” BNA’s Electronic
Commerce & Law Report (Oct. 30, 2002) at 1082.
(^561) Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003).