The Clinic submitted two amicus curiae briefs in an appeal to the Ninth Circuit in Kelly v. Arriba Soft, on behalf of the search engine Google to rehear the case. In affirming the District Court’s decision to impose liability for an image search engine’s links to “full-size images”, the original Ninth Circuit had handed down a decision that could arguably be read to impose liability for directly linking to a copyrighted work. The Ninth Circuit held that Arriba’s links violated the display right, a technologically and legally questionable outcome. Moreover, imposing liability for linking would raise serious policy questions, as it would leave search engine companies, other Internet services, and independent Web publishers uncertain of their exposure to copyright infringement liability for the common and necessary practice of linking to publicly available web sites.
Update: on July 10, 2003, the Ninth Circuit withdrew its original decision and filed a new decision, which reversed the District Court’s decision as to the “full-size images” on procedural grounds and remanded for further proceedings.