In Kelly v Arriba(21), the case involved the application of copyright law to the vast world of the Internet and Internet search engines. In that case, there were two distinct actions involved. The first action consisted of the reproduction of Kelly's images to create the thumbnails and the use of those thumbnails in Arriba's search engine. The second action involved the display of Kelly's full-sized images when the user clicked on the thumbnails (please refer to the topic on "inline linking").

The District Court found that Kelly had established a prima facie case of copyright infringement based on Arriba's unauthorized reproduction and display of Kelly's works, but that this reproduction and display constituted a non-infringing "fair use" under Section 107 of the Copyright Act. Kelly appealed the decision to the Court of Appeals.

The Court of Appeals found that Arriba's use of Kelly's images in its search engine was "fair use" under the Copyright Act. However, the court held that Arriba's display of Kelly's full-sized images was not "fair use" and thus violated Kelly's exclusive right to publicly display his copyrighted works. The District Court's opinion was, therefore, affirmed as to the thumbnails and reversed as to the display of the full-sized images.

The decision of the Court of Appeals in Kelly v Arriba and that of the District Court in Shetland Times v Wills attempted to answer a similar question, that is, whether unauthorized reproduction of texts or images for linking can constitute copyright infringement, although their approaches to the answer were quite different. The decision in Kelly v Arriba wisely permitted use of the images to create thumbnails that were typically used and needed in Internet searching and navigation. This result seems consistent with the fair use doctrine under US copyright law that protects normal indexing and summarizing use.

In Thailand, arguably both hyperlinking and deep linking technically do not constitute copyright infringement under the Thai CA 1994 because they do not involve any reproduction or copying of the original work. There is no reproduction or copying made from them since an Internet user who operates the linking directly jumps to the original web page of the copyright owner. But, hyperlinking and deep linking can constitute copyright infringement where a text or image qualifying as a copyrighted work is reproduced and used as the text or image for linking.

However, since there is as yet no court decision or statutory legislation on this matter, that is, whether hyperlinking and deep linking constitute copyright infringement under the Thai CA 1994, the issue is debatable.

(5) Inline Linking and Framing

Inline linking and framing potentially raise copyright concerns. Both technologies allow one website, to some extent, to associate itself with the content of another website and to create new adaptive web displays combining content from both sites.

Inline linking is the term used when one website imports a graphic from another website and incorporates it in its own website. The inline graphic will appear as a seamless part of the webpage an Internet user is viewing. At present, there is one well-known case dealing with inline linking and copyright infringement.

In Kelly v Arriba(22), the District Court ruled that the plaintiff had established a prima facie case of copyright infringement based on the display of the plaintiffs works, but that display constituted a non-infringing "fair use" under Section 107 of the Copyright Act. In reverse, the Court of Appeals found that the defendant's display of the plaintiffs full-sized images was not a "fair use" and thus violated the plaintiffs exclusive right to publicly display his copyrighted works.

In Thailand, there is as yet neither a court decision nor statutory legislation as to whether inline linking can constitute copyright infringement under the Thai CA 1994. Technically, inline linking does not itself involve any reproduction or copying of original works. Nevertheless, inline linking allows one website to import a graphic from another website and incorporate it in its own website. Internet users will never know that the graphic comes from another website, and therefore, arguably inline linking constitutes copyright infringement since it creates an adaptive work of the original work under Section 4 of the Thai CA 1994 which defines an adaptation as "a reproduction by transformation, improvement, modification or emulation of the original work for the significant part, whether in whole or in part."

Framing is the term used when one website brings content from another website into a window that appears on the original framing site(23). By using framing, two or more websites can simultaneously appear on the user's computer monitor. At present, there are two well-known cases in the United States dealing with framing and copyright infringement.

In Washington Post Co. v Total News(24), this case did not provide a legal authority of framing because it was settled in June 1997 with Total News's agreement not to frame the plaintiffs' content.

In Futuredontics Inc. v Applied Anagramics Inc(25), the District Court denied the plaintiffs application for preliminary injunction by finding that placing a frame around the plaintiffs web page did not constitute a reproduction or copy of the copyrighted content. The Court of Appeals for the Nine Circuit upheld this decision by finding that the plaintiff had failed to show that it was or would be injured by defendant's conduct(26). In the absence of the requisite showing of injury, the plaintiff was not entitled to injunctive relief(27).

The District Court also ruled that an unauthorized derivative work might be produced through the use of framing. In this regard, there is a view that framing alters the framed website by integrating it into something else its author did not create or authorize(28). Unauthorized framing of websites therefore establishes an infringing derivative work(29).

In Thailand, there is as yet neither a court decision nor statutory legislation as to whether a framing website is liable for copyright infringement under the Thai CA 1994. Technically, a framing website is not itself making a copy of another website because a framing site tells the user's browser to retrieve a web page of the framed website. Therefore, the framing website does not infringe the reproduction right of the owner of the copyrighted work under Section 15(1) of the Thai CA 1994. However, the framing website may be considered as copyright infringement if there is any adaptation to the framed website(30).

(6) Trading or Exchanging of MP3 Format Music Files

MP3 stands for Motion Picture Experts Group 1, layer 3 or MPEG3(31). It is a technology used to compress digital music files to one-twelfth of their original size without compromising the sound quality(32). This allows for large digital music files to be downloaded more quickly and easily than the old WAV format(33). This convenience attracts a number of people to this format.

In the United States, since MP3 makes it possible for Compact Disks ("CDs") to be available on websites for downloading, MP3 online music companies are often opposed and accused of US copyright infringement. The biggest opposition comes from the Recording Industry Association of America ("RIAA"), which is a trade association that represents 250 companies, including the five major record companies - BMG Entertainment, EMI, Sony Music, Universal, and Warner(34). Up to the present, there have been several MP3 online music cases testing US copyright law.

In Recording Industry Association of America (RIAA) v MP3.com(35) on Friday, April 28, 2000, Judge Rakoff in a US District Court of New York found that MP3.com's "replaying for the subscribers converted versions of the recordings it copied, without authorization from plaintiffs copyrighted CDs" constituted copyright infringement. under the Copyright Act and that its defence was "without any merit and did not meet a single one of the tests for fair use(36)." MP3.com finally reached a settlement with the major five record companies, (BMG Entertainment, EMI, Sony Music, Universal, and Warner), providing for royalty payments and licensing arrangements.

In RIAA v Napster(37), on February 12, 2001, the US Court of Appeals(38) upheld the District Court's findings that Napster, which operated an online file sharing.service, may be liable for contributory and vicarious copyright infringement(39). However, the Court of Appeals found that the District Court's injunction was overbroad and thereby directed the District Court to modify the injunction as follows. For contributory infringement, Napster may be held liable only to the extent that it knows or should know that the infringing files are available on its system and fails to act to prevent distribution of those files. For vicarious infringement, Napster may be held liable only when it fails to use its ability to police its system and remove infringing files listed in its search index(40).

Having successfully forced Napster into compliance with copyright laws, on October 2001, the RIAA and Motion Picture Association of America ("MPAA") filed suit against the Napster successors - MusicCity.com (MusicCity Networks, which operates Morpheus), Grokster.com, and Consumer Empowerment (FastTrack, which operates KaZaA.com) in the US District Court for copyright infringement(41). In those cases, the plaintiffs claimed that the purposes of the defendants and Napster were the same. They knew that their programs would enable infringing files and should have known that infringing files were available on their systems. As a result, they should be held liable for contributory and vicarious copyright infringement.

The defendants argued that Napster was liable for contributory and vicarious copyright infringement because its central "server" kept track of all files shared on its network. Napster knew what files were being shared and thereby it was found liable because it could have prevented the distribution of infringing files. Unlike Napster, the defendants were software programs exchanging files without central servers. Users could directly exchange files via instant messages among other users on their "Buddy lists" without having their files listed on the central servers. Without the central servers, their systems were not policeable, and thereby they had no way of knowing that the infringing files were available on their systems. Consequently, in the light of the Appeal court's decision in the Napster case, they were not liable for contributory and vicarious copyright infringement on what they did not know and could not police.

The District Court ruled in favor of the defendants. The plaintiffs appealed against the ruling to the Court of Appeals. The Court of Appeals affirmed the District Court's judgment, finding that the defendants' activities did not give rise to contributory or vicarious liability for copyright infringement by users. As to contributory infringement, the court found that the plaintiffs failed to prove the defendants' knowledge of the infringement and material contribution to the infringement. As to vicarious infringement, the court found that the defendants did not operate an integrated service and, thus, did not have the right and ability to supervise the direct infringers(42).

In Thailand, there are as yet no cases like MP3.com, Napster, and Napster's successors being litigated in the Thai court. However, in the case of MP3.com, the fact that MP3.com, without the permission of the copyright owners, copied a number of copyrighted music in its server is a primary copyright infringement against the reproduction right of copyright owners under Sections 15(1), 27 and 30 of the Thai CA 1994.

In the case of Napster, under Section 31 of the Thai CA 1994, Napster may be liable for secondary copyright infringement, if it knows or should have known that its hyperlinks link to the infringing copyright materials and it distributes for profit the hyperlinks in the manner which may affect prejudicially the owner of copyrights. However, if the distribution is for free, Napster will not be liable for secondary copyright infringement since under Section 31, the distribution must be done for profit.

In the case of Napster’s successors, the fact that they do not store either the infringing files or the lists of the infringing files on their central servers makes it difficult, if not impossible, for the plaintiff to prove that Napster's successors knew or should have known that there were infringing files on their systems. In addition, Napster’s successors are not the ones who distribute the infringing files or the hyperlinks to the infringing files. Rather, it is the users who directly distribute the infringing files between themselves. Therefore, under Section 31 of the Thai CA 1994, no infringing act has been committed by Napster’s successors. In addition, the concept of contributory and vicarious liability under US copyright law, even though recognized in the Thai law of tort, is not found in Thai copyright law. Thus, under the Thai CA 1994, Napstei s successors might get away without any liability. This loophole could result in inadequate protection of the copyright owners in MP files on the Internet.