The “visual search engine” of Arriba Soft (now known as Ditto.com) was the subject of a lawsuit filed by a photographer alleging that its display of thumbnail images in the results of searches was an infringement of his copyright.
The appeal court last month disagreed with the photographer, finding that the display of miniature images, or thumbnails, fell within the copyright law exception of “fair use”. The request for a rehearing concerns another finding of the court.
The court said that permitting the user of Arriba’s search engine to view the original images directly from the photographer’s server in a separate browser window violated the copyright owner's public display right.
Judith Jennison of US law firm Perkins Coie, representing Arriba’s, said on Friday that the court's ruling on the thumbnail issue is “absolutely the right decision for copyright law and the internet.” However, she said that the court’s ruling on the public display right appeared to be based on a misapprehension of the origin of Arriba Soft's display.
Jennison argues that, by applying the public display right to the original images without requiring proof that the images were displayed or transmitted, the panel's decision is in contradiction of existing copyright laws.
“The Panel's equation of linking with public display has a potentially dramatic effect on both search and other internet technologies,” said Jason Hardiman, a lawyer for Ditto.com’s parent company, Sorceron. Jennison added that a review was necessary “given the importance of linking to the internet, and the unexpected breadth of the Panel's decision.”
The petition will allow all judges on the Ninth Circuit to vote on whether to rehear argument on the issue through a larger panel of eleven judges.