the scope of both Kelly’s original motion to include a claim for infringement of the full-sized
images and the scope of Arriba’s concession to cover the prima facie case for both the thumbnail
images and the full-sized images.^562 Accordingly, the court remanded for further proceedings
with respect to the full-sized images to give the parties an opportunity to fully litigate those
issues.^563
- Ticketmaster v. Tickets.com
See Section III.D.7 below for a discussion of this case, which distinguished the Kelly v.
Arriba Soft case and held that Tickets.com’s deep linking to pages on Ticketmaster’s web site
where tickets could be purchased for events listed on Tickets.com’s site did not constitute an
infringing public display.
- Perfect 10 v. Google (aka Perfect 10 v. Amazon)
Perfect 10 v. Google set forth a detailed adjudication of the boundaries of the display
right on the Internet, and in particular, which entity should be deemed to perform the display for
purposes of copyright liability when the display results through links from a web site to another
web site storing copies of the copyrighted material at issue. Because both the district court and
the Ninth Circuit issued very thorough, thoughtful opinions, the holdings of both courts will be
explained in detail.
The plaintiff Perfect 10 sought to preliminarily enjoin Google from displaying
thumbnails and full size versions of its copyrighted photographs through the “Google Image
Search” function in response to user search queries. Google Image Search allowed a user to
input a text search string and returned thumbnail images organized into a grid potentially
responsive to the search query.^564
To operate Google Image Search, Google created and stored in its cache thumbnail
versions of images appearing on web sites crawled by Google’s web crawler. The thumbnails
chosen for display in response to search queries depended solely upon the text surrounding the
image at the original site from which the image was drawn. When a user clicked on a thumbnail
image, Google displayed a page comprised of two distinct frames divided by a gray horizontal
line, one frame hosted by Google and the second one hosted by the underlying web site that
originally hosted the full size image.^565 In the upper frame, Google displayed the thumbnail,
retrieved from its cache, and information about the full size image, including the original
resolution of the image and the specific URL associated with that image. The upper frame made
clear that the image might be subject to copyright and that the upper frame was not the original
context in which the full size image was found. The lower frame contained the original web
(^562) Id. at 817.
(^563) Id. at 822.
(^564) Perfect 10 v. Google, 416 F. Supp. 2d 828, 832-33 (C.D. Cal. 2006), aff’d sub nom. Perfect 10 v. Amazon.com,
Inc., 508 F.3d 1146, 1169 (9th Cir. 2007).
(^565) Id. at 833.