The Kelly v. Arriba Soft case ties in very closely to the Perfect 10 v. Google case. Arriba Soft operated a "visual search engine" on the Internet. Just like Google, Arriba Soft produced a list of images that had been reduced to "thumbnail" images. The process is almost identical to that of Google. Kelly is a photographer whose photos have appeared in books about California Gold Rush Country. In January 1999, thirty-five of Kelly's photographs appeared in thumbnail format on Arriba Soft's image search. When notified, Arriba Soft removed the thumbnails, but because of technical limitations, the photographs occasionally reappear.
Arriba Soft's defense centered on Fair Use. The Court found that the first factor weighs in favor of Fair Use. The main argument was that these photographs were not a significant part of the economic gain and that it is very transformative and provides extra details about the images. The Court, however, found that the second factor weighs against Fair Use. This was because photographs of this nature are part of the core of intended copyright protection. The Court also found that the third factor weighs slightly against Fair Use. This decision was reasonable because Arriba Soft linked to a full size image with attributes that did not involve the original site. This argument would not suffice in the Google case because Google actually links to the original page. Finally, the Court found that the fourth factor weighs in favor of fair use. This was because there was no evidence or reason for the search engine harming Kelly's market. Do to the importance of the first factor, the Court agreed that Fair Use was appropriate and Arriba Soft was not guilty of any infringement.
This case is very similar to the Google case because of the focus on similar arguments regarding thumbnails. The only difference between Arriba Soft and Google is that Google links to the actual site from which the thumbnail is derived and that Google uses advertisement for economic gain. Because the decision favored Arriba Soft, many of the arguments made should be carried over to the Google case and support my thesis. If the thumbnails in Arriba Soft are Fair Use, then the Google thumbnails should also be Fair Use.