Kelly versus Perfect 10

What distinguishes the Kelly v. Arriba Soft Corporation, 336 F.3d 811, 820 [pdf], case where the court held that thumbnail images of copyrighted works constituted fair use and the recent ruling by U.S. District Judge A. Howard Matz in the Perfect 10 v. Google case? I believe the cases are distinguished on the basis that Perfect 10 actually sells downloadable thumbnail versions of its nude photos. I don't necessarily think this would make good law if this is how the case is eventually decided, but the cases can clearly be distinguished on that basis. Fair Use will continue to exist in cases where the copyright holder does not sell thumbnailed versions. Google's Image search will not be crippled, but clearly the burden will be on the search engines to determine what images can be included in its image seach. Bonus: Marty Schwimmer has linked to a copy of the injunction [pdf]. See also: William Patry on Google Nudes (I personally think the implied license is a stretch.) * Perfect 10 ...

05:22:04 February 22, 2006, Wednesday (PST) Source: techlawadvisor/blog

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