This letter illustrates the fact that while there are many similarities between the business practices of Arriba Soft and those of Google, the differences that do exist, may present problems in a finding of fair use for Google.  Both cases involve accusations of copyright infringement based upon the wholesale copying of protected material to create search engine databases.  However, the material Arriba Soft copied was already digitized and available online, whereas, in general, this is not the case for the material Google is copying.  This distinction is viewed as critical by many as posting information on the internet is typically viewed as an implied license.

Additionally, the full-resolution copies Arriba Soft made in order to create the thumbnails it used for indexing were deleted after the thumbnails were produced.  In contrast, Google both keeps a copy and gives a copy to the library the work was copied from.  Even if Google were able to succeed in a fair-use argument based upon the decision in the Kelly case in which full copying could be considered fair use if necessary for the intended use, there would still be the issue of justifying the provision of a digital copy to the participating library. 

  Given these differences, the article poses the question, “how does Kelly v. Arriba Soft support your claim?”  Moreover, the article asks why other cases in which the courts decided against a claim of fair use, such as Buena Vista v. Video Pipeline, do not apply to Google’s argument as well.  This second question is an intriguing one; however, it seems as if the Kelly case more directly parallels Google’s fair use assertion. One large difference is that unlike Video Pipeline, Google does not profit directly from its use of copyrighted material.