knowing that it has been altered or removed, or distributing, importing for distribution, or
publicly performing works in which CMI has been removed or altered, in all cases knowing, or,
with respect to civil remedies under Section 1203, having reasonable grounds to know, that it
will induce, enable, facilitate, or conceal infringement.
(i) Cases re Removal or Alteration of CMIa. Kelly v. Arriba Soft Corp.The first case under the CMI provisions was Kelly v. Arriba Soft Corp.^1335 In that case,
the defendant was the operator of a “visual search engine” on the Internet that allowed users to
search for and retrieve images. In response to a search query, the search engine produced a list
of reduced, “thumbnail” pictures. By clicking on the desired thumbnail, a user could view an
“image attributes” window displaying the full-size version of the image, a description of its
dimensions, and an address for the website where it originated. By clicking on the address, the
user could link to the originating website for the image.^1336
The search engine maintained an indexed database of approximately two million
thumbnail images obtained through the operation of a web crawler that traveled the Web in
search of images to be converted into thumbnails and added to the index. The defendant’s
employees conducted a final screening to rank the most relevant thumbnails and eliminate
inappropriate images. The plaintiff was the owner of the copyright in about 35 photographs that
were indexed by the crawler and put in the defendant’s database. The plaintiff sued the
defendant for copyright infringement, alleging that storage of the images in the database
constituted a direct infringement, as well as a violation of the CMI provisions of the DMCA.^1337
The court ruled that the defendant’s use of the images in thumbnail form constituted a fair use,
and that there was no violation of the CMI provisions of the DMCA.^1338
The plaintiff argued that the defendant violated the CMI provisions of the DMCA by
displaying thumbnails of the plaintiff’s images without displaying the corresponding CMI
consisting of standard copyright notices in the surrounding text accompanying the photographs
on the plaintiff’s website from which the crawler obtained the photographs. Because these
notices did not appear in the images themselves, the crawler did not include them when it
indexed the images. As a result, the images appeared in the defendant’s index without the CMI,
and any users retrieving the images through the search engine would not see the CMI.^1339
The court rejected this claim, holding that Section 1202(b)(1) (which prohibits
intentionally removing or altering CMI) “applies only to the removal of copyright management
(^1335) 53 U.S.P.Q.2d 1361 (C.D. Cal. 1999), aff’d in part and rev’d in part on other grounds, 336 F.3d 811 (9th Cir.
2003).
(^1336) Id. at 1362.
(^1337) Id.
(^1338) Id. at 1363-67.
(^1339) Id. at 1366.