Plaintiff Leslie Kelly, a professional photographer, displayed several of his copyrighted
photographs at his websites. He also licensed some photographs to outside websites. Defendant
Arriba Soft Corp.44 operated a “visual search engine” which displayed the results of a user’s
search query as thumbnail images. To create the thumbnails, Arriba first used a “Web crawler”
to search for images to index in its search engine.45 Upon finding a suitable image, the crawler
would download a copy of the full-sized image onto Arriba’s server, generate a thumbnail
representation of the image, and then delete the full-sized image from the server.46
Arriba’s search engine returned these thumbnails as search results. Originally, upon a
user’s clicking a thumbnail, Arriba’s search engine produced a page displaying the full-sized
image, retrieved directly from the originating website’s server, with text describing the size of
the image, a link to the originating website, the Arriba banner, and Arriba advertising