Kelly v. Arriba Soft Corp.

77 F. Supp. 2d 1116, 1121-23 (C.D. Cal. 1999), affirmed in part on other grounds and reversed in part on other grounds, 280 F.3d 934 (9th Cir. 2002)

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[NOTE: This case has been edited for classroom use by the omission of text, citations, and footnotes. See this alternate source for the full opinion. For the trial court's discussion of the facts and the copyright infringement claim, see 77 F. Supp. 2d 1116, 1116-21 (C.D. Cal. 1999), affirmed in part, reversed in part, 280 F.3d 934 (9th Cir. 2002), reproduced supra at Ch.07.B.1.]

Judge U.S. District Judge Gary L. Taylor


. . . .

B. Digital Millennium Copyright Act

Enacted on October 28, 1998, the Digital Millennium Copyright Act (DMCA) implements two earlier World Intellectual Property Organization treaties. Section 1202 of the DMCA governs "integrity of copyright management information."n9 Section 1202(a) prohibits falsification of copyright management information with the intent to aid copyright infringement. Section 1202(b) prohibits, unless authorized, several forms of knowing removal or alteration of copyright management information.n10 Section 1203 creates a federal civil action for violations of these provisions.

Plaintiff argues Defendant violated § 1202(b) by displaying thumbnails of Plaintiff's images without displaying the corresponding copyright management information consisting of standard copyright notices in the surrounding text. Because these notices do not appear in the images themselves, the Ditto crawler did not include them when it indexed the images. As a result, the images appeared in Defendant's index without the copyright management information, and any users retrieving Plaintiff's images while using Defendant's Web site would not see the copyright management information.

Section 1202(b)(1) does not apply to this case. Based on the language and structure of the statute, the Court holds this provision applies only to the removal of copyright management information on a plaintiff's product or original work. Moreover, even if § 1202(b)(1) applied, Plaintiff has not offered any evidence showing Defendant's actions were intentional, rather than merely an unintended side effect of the Ditto crawler's operation.

Here, where the issue is the absence of copyright management information from copies of Plaintiff's works, the applicable provision is § 1202(b)(3). To show a violation of that section, Plaintiff must show Defendant makes available to its users the thumbnails and full-size images, which were copies of Plaintiff's work separated from their copyright management information, even though it knows or should know this will lead to infringement of Plaintiff's copyrights. There is no dispute the Ditto crawler removed Plaintiff's images from the context of Plaintiff's Web sites where their copyright management information was located, and converted them to thumbnails in Defendant's index. There is also no dispute the Arriba Vista search engine allowed full-size images to be viewed without their copyright management information.

Defendant's users could obtain a full-sized version of a thumbnailed image by clicking on the thumbnail. A user who did this was given the name of the Web site from which Defendant obtained the image, where any associated copyright management information would be available, and an opportunity to link there.n12 Users were also informed on Defendant's Web site that use restrictions and copyright limitations may apply to images retrieved by Defendant's search engine.n13

Based on all of this, the Court finds Defendant did not have "reasonable grounds to know" it would cause its users to infringe Plaintiff's copyrights. Defendant warns its users about the possibility of use restrictions on the images in its index, and instructs them to check with the originating Web sites before copying and using those images, even in reduced thumbnail form.

Plaintiff's images are vulnerable to copyright infringement because they are displayed on Web sites. Plaintiff has not shown users of Defendant's site were any more likely to infringe his copyrights, any of these users did infringe, or Defendant should reasonably have expected infringement.

There is no genuine issue of material fact requiring a trial on Plaintiff's DMCA claims, and summary adjudication is appropriate. The Court finds there was no violation of DMCA § 1202. Defendant's motion is GRANTED and Plaintiff's motion is DENIED on the DMCA claim.





9 "Copyright management information" is defined, in relevant part, as:

Any of the following information conveyed in connection with copies . . . of a work . . . or displays of a work, including in digital form . . .:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.

(2) The name of, and other identifying information about, the author of a work.

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

17 U.S.C. § 1202(c).

10 Section 1202(b) provides, in relevant part,

No person shall, without the authority of the copyright owner or the law--
(1) intentionally remove or alter any copyright management information,

. . .

(3) distribute . . . copies of works . . . knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under [federal copyright law].

12 Through Defendant's current search engine, ditto.com, the user can no longer open a full-sized image without also opening the site where its copyright management information is located.

13  Plaintiff argues Defendant's warnings are insufficient because they do not appear with the thumbnail images on the search result pages produced by the search engine. The Arriba Vista Web site only offered a warning if users clicked on a link to its "Copyright" page. This warning may arguably have been placed in the wrong place to deter some potential copyright infringers. But this does not necessarily mean Defendant "knew" or "should have known" for the purposes of a DMCA violation, especially since Plaintiff offers no evidence of any actual copyright infringement about which Defendant "should have known."

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