San Francisco - The Electronic Frontier Foundation (EFF)
today filed a brief on behalf of Ditto.com, urging the U.S.
Ninth Circuit Court of Appeals to reconsider a ruling that
threatens to make all linking on the World Wide Web a
In order to hold Ditto.com liable for copyright
infringement, the Ninth Circuit Court of Appeals created a novel legal
rationale. It found that linking to a website without
permission infringes the public display rights of the
"Extending copyright law to all linking on the Web would
be a nightmare," said EFF Senior Intellectual Policy
Attorney Fred von Lohmann. "A whole new flurry of lawyer
letters would chill linking on the Web, striking at the
heart of free expression on the Internet."
Ditto.com is a search engine that helps people find publicly
available image files on the Web. So, for example, by
entering "sailboat" into the Ditto website, the searcher
would be shown a selection of images of sailboats from
around the Web. Ditto both presented the images in reduced
form, known as thumbnails, and also provided links that
would allow the searcher to open the full-size image in a
new web browser window.
Ditto was sued by Les Kelly, a photographer, after Kelly
discovered that Ditto had indexed his website and the
images found there. Ditto.com prevailed before the trial
court, but suffered a defeat on appeal before the Ninth
Circuit in San Francisco. Although the Ninth Circuit found
that Ditto.com's use of thumbnail images was allowed under
the copyright law doctrine of "fair use," it held Ditto.com
liable for copyright infringement for opening a new window
to display the image. This technique is known as "in-line
linking" or "framing" and is commonly used by numerous other
Web search engines, including Lycos, Google, and Altavista.
By concluding that these common linking techniques infringe
copyright law, the Ninth Circuit has seriously threatened
linking on the Web.
EFF filed an amicus brief on Ditto.com's behalf, asking the
Ninth Circuit to reconsider its decision. The case title is
Kelly v. Arriba Soft Corp., No. 00-55521, decided on
February 6, 2002. [Arriba Soft is the former name of
For documents related to the Ditto.com case: