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

Publication Date: January 2007

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics; Media, telecommunications, and information

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Abstract:

Hyperlinking, in-line linking, caching, framing, thumbnails. 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., which held that a search engine's online display of protected "thumbnail" images was a fair use of copyright protected work. More recently, U.S. district courts have 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, a U.S. district court found that Google's system of displaying cached images did not infringe the content owner's copyright. And in Perfect 10 v. Google, another U.S. district court held that the search engine's practice of in-line linking and framing was not infringing, but that its use of thumbnail images was.

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 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.