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Internet Search Engines: Copyright's "Fair Use" in Reproduction and Public Display Rights

Terms that describe Internet functionality pose interpretative challenges for the courts as they determine how these activities relate to a copyright holder's traditional right to control reproduction, display, and distribution of protected works. At issue is whether basic operation of the Internet, in some cases, constitutes or facilitates copyright infringement. If so, is the activity a "fair use" protected by the Copyright Act? These issues frequently implicate search engines, which scan the web to allow users to find content for uses, both legitimate and illegitimate. In 2003, the Ninth Circuit Court of Appeals decided Kelly v. Arriba Soft Corp., holding that a search engine's online display of "thumbnail" images was a fair use of copyright protected work. More recently, a U.S. district court considered an Internet search engine's caching, linking, and the display of thumbnails in a context other than that approved in Kelly. In Field v. Google, the district court found that Google's system of displaying cached images did not infringe the content owner's copyright. And in Perfect 10 v. Amazon.com Inc., the Ninth Circuit revisited and expanded upon its holding in Kelly, finding that a search engine's use of thumbnail images and practice of in-line linking, framing, and caching were not infringing. But it left open the question of possible secondary liability for contributory copyright infringement and possible immunity under the Digital Millennium Copyright Act. Taken together, these cases indicate a willingness by the courts to acknowledge the social utility of online indexing, and factor it into fair use analysis; to adapt copyright law to the core functionality and purpose of the Internet, even when that means requiring content owners to affirmatively act, such as by the use of meta-tags; and to consider and balance conflicts between useful functions, such as online indexing and caching, against emerging, viable new markets for content owners.

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