Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PERFECT 10’S MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE MATZ, District Judge. I. INTRODUCTION The principal two-part issue in this case arises out of the increasingly recurring conflict between intellectual property rights on the one hand and the dazzling capacity of internet technology to assemble, organize, store, access, and display intellectual property “content” on the other hand. That issue, in a nutshell, is: does a search engine infringe copyrighted images when it displays them on an “image search” function in the form of “thumbnails” but not infringe when, through inline linking, it displays copyrighted images served by another website? Plaintiff Perfect 10, Inc. (“P10”) filed separate suits against Google, Inc. and against Amazon.com, Inc. and its subsidiary, A9.com, Inc. (collectively, “Amazon”), alleging copyright and trademark infringement and various related claims. The suits were consolidated. P10 moves now for a preliminary injunction against both Defendants, solely on the basis of its copyright claims. P10 seeks to prevent Defendants’ image search engines from displaying “thumbnail” copies of PlO’s copyrighted images and also from linking to third-party websites which host and serve infringing full-size images. The Court conducted a hearing on November 7, 2005. The Court now concludes that Google’s creation and public display of “thumbnails” likely do directly infringe PlO’s copyrights. The Court also concludes, however, that P10 is not likely to succeed on its vicarious and contributory liability theories. This Order will address PlO’s motion for preliminary injunctive relief against Google. Amazon licenses from Google much of the technology whose use by Amazon P10 challenges. A separate order will address PlO’s motion against Amazon. II. BACKGROUND A. The Parties 1. Perfect 10 P10 publishes the adult magazine “PERFECT 10” and operates the subscription website, “perfectlO.com,” both of which feature high-quality, nude photographs of “natural” models. Pl.’s Zada Decl. ¶¶ 9-10. During the last nine years, PIO has invested $36 million to develop its brand in its magazine and its website. Id. ¶ 11. This investment includes approximately $12 million spent to photograph over 800 models and create 2,700 high quality images that have appeared in its magazine, along with an additional approximately 3,300 images that have appeared on per-fectl0.com. Id. P10 has obtained registered copyrights for its photographs from the United States Copyright Office. Id., Ex. 1. P10 generates virtually all of its revenue from the sale of copyrighted works: (1) it sells magazines at newsstands ($7.99 per issue) and via subscription; (2) it sells website subscriptions to perfectl0.com for $25.50 per month, which allow subscribers to view P10 images in the exclusive “members’ area” of the site; and (3) since early 2005, when P10 entered into a licensing agreement with Fonestarz Media Limited, a United Kingdom company, for the worldwide sale and distribution of P10 reduced-size copyrighted images for download and use on cell phones, it has sold, on average, approximately 6,000 images per month in the United Kingdom. Id. ¶ 16. Aside from the licensing agreement with Fones-tarz Media Limited, P10 has not authorized any third-party individual or website to copy, display, or distribute any of the copyrighted images which P10 has created. Id. ¶ 17. 2. Google Google describes itself as a “software, technology, Internet, advertising, and media company all rolled into one.” Google, Inc., 2004 Annual Report (Form 10-K), at 9. Google is one of the most highly frequented websites on the internet. Pl.’s Zada Deck, Ex. 3 (report from Alexa Internet, Inc. showing http://www.goo-gle.com/ranking as the third most visited site in the world). Google operates a search engine located at the domain name “google.com.” Google’s search engine indexes websites on the internet via a web “crawler,” ie., software that automatically scans and stores the content of each website into an easily-searchable catalog. Def.’s Levine Decl. ¶¶ 13-14. Websites that do not wish to be indexed, or that wish to have only certain content indexed, can do so by signaling to Google’s web crawler those parts that are “off limits.” Google’s web crawler honors those signals. Google operates different search engines for various types of web content. All search queries are text-based, ie., users input text search strings representing their query, but results can be in the form of text, images, or even video. Id. ¶ 21. Thus, for example, Google’s basic web search, called Google Web Search, located at http://www.google.com/, receives a text search string and returns a list of textual results relevant to that query. Google Image search, on the other hand, receives a text search string and returns a number of reduced-sized, or “thumbnail” images organized into a grid. Google stores content scanned by its web crawler in Google’s “cache.” For Google Web Search, because its “web page index is based entirely on the textual part of web pages and not the images, [its] web page cache contains only the text pages, and not the images that those pages include when displayed.” Def.’s Levine Decl. ¶ 21. For Google Image Search, too, the results depend solely on the text surrounding an image. Id. ¶ 22. But for Image Search, Google also stores thumbnails in its cache, in order to present the results of the user’s query. Def.’s MacGil-livray Decl. ¶ 3 (“The browser obtains ‘thumbnail’ images from Google’s server....”); Pl.’s Mausner Decl., Ex. 118, Google’s Resp. to PlO’s Req. for Admis. No. 24 (“Google admits that its servers store reduced-size extracts of images.”). A user of Google Image Search can quickly scan the grid of returned thumbnails to determine whether any of the images responds to his search query. He “can then choose to click on the image thumbnail and show more information about the image and cause the user’s browser ... to open a ‘window’ on the screen that will display the underlying Web page in a process called ‘framing.’ ” Def.’s MacGillivray Decl. ¶ 3. “Framing” is a method of “combining] multiple pages in a single window so that different content can be viewed simultaneously, typically so that one ‘frame’ can be used to annotate the other content or to maintain a link with an earlier web page.” Def.’s Levine Decl. ¶ 24 n. 1. In other words, when a user clicks on a thumbnail returned as the result of á Google Image Search, his computer pulls up a page comprised of two distinct frames, one hosted by Google and a second hosted by the underlying website that originally hosted the full-size image. The two frames are divided by a gray horizontal line a few pixels high. The upper frame is the Google frame. It contains the thumbnail, retrieved from Google’s cache, and information about the larger image, including the original resolution of the image and the specific URL associated with that image. The Google frame also states that the thumbnail “may be scaled down and subject to copyright” and makes clear that the upper frame is not the original context in which the full-size image was found, stating, “Below is the image in its original context on the page: http://<URL>.” The lower frame contains, or shows, the original web page on which the original image was found. Google neither stores nor serves any of the content (either text or images) displayed in the lower frame; rather, the underlying third party website stores and serves that content. Id. ¶¶ 27-29. However, because it is Google’s web-page that composites the two frames, the URL displayed in the browser’s address bar displays “images.google.com.” Id. Attached hereto as Exhibit A is an example of the two-frame structure just described, containing in the upper frame one of the thumbnail images that appeared on the display of thumbnails retrieved by an image search for “Vibe Sorenson,” a P10 model. Google generates much of its revenue through two advertising programs: Ad-Words, for advertisers, and AdSense, for web publishers. Def.’s MacGillivray Decl. ¶ 9. Through AdWords, advertisers purchase advertising placement on Google’s pages, including on search results pages and Google’s Gmail web-based email service. Id. Google’s AdSense program allows pages on third party sites “to carry Google-sponsored advertising and share [with Google the] revenue that flows from the advertising displays and click-throughs.” Id. ¶ 10. “To participate [in AdSense], a website publisher places code on its site that asks Google’s server to algorithmically select relevant advertisements” based on the content of that site. Id. B. Procedural History On November 19, 2004, P10 filed suit against Google asserting various copyright and trademark infringement claims: (1) direct copyright infringement, (2) vicarious copyright infringement, (3) contributory copyright infringement, (4) circumvention of copyright protection systems under the Digital Millennium Copyright Act (“DMCA”), (5) direct trademark infringement, (6) contributory trademark infringement, (7) vicarious trademark infringement, (8) trademark dilution (federal), (9) unfair competition, (10) wrongful use of a registered mark, (11) trademark dilution (state), and (12) violation of rights of publicity. Compl. ¶¶ 35-115. C. Proposed Injunctive Relief P10 seeks to preliminarily enjoin Google from engaging in the following activities: (a) Copying, reproducing, distributing, publicly displaying, adapting or otherwise infringing, or contributing to the infringement of any copyrighted image owned by Perfect 10 which has been or will be identified in notices to Google, as described below (“PERFECT 10 COPYRIGHTED IMAGES”). Perfect 10 will provide to Google notice of PERFECT 10 COPYRIGHTED IMAGES within ten (10) business days of the issuance of this Order, and may supplement that notice once each month. Within ten (10) business days of the receipt of notice of PERFECT 10 COPYRIGHTED IMAGES (including additional images as provided herein), Google shall delete and disable its display of all such images, including without limitation, deletion from any database owned or controlled by Google, and shall not display such images in the future. (b)Linking to websites which display or make available PERFECT 10 COPYRIGHTED IMAGES for which Google has received notice as described below (“Infringing Websites”). Infringing Websites are (i) websites which were linked to by Google as identified in any notice of infringement from Perfect 10 to Google prior to June 20, 2005 (exs. 40-73 of the Declaration of Norman Zada filed herein) and which as of July 11, 2005, continued to display or make available PERFECT 10 COPYRIGHTED IMAGES on any of their web pages, or (ii) websites that in the future continue to display or make available PERFECT 10 COPYRIGHTED IMAGES on any of their web pages three (3) weeks after notice of such infringement to Google. Within ten (10) business days of the receipt of each notice of Infringing Websites, Google shall delete and disable all links to such Infringing Websites from any website owned or controlled by Google and shall not link to such Infringing Websites in the future. (c) Copying, reproducing, distributing or publishing any username/pass-word combinations to perfectl0.com or linking to any websites that provide username/password combinations to perfectl0.com which have been or will be identified in notices to Google, as described below. Within ten (10) business days of the receipt of each notice of Infringing Websites, Google shall delete all us-ername/password combinations to perfectl0.com and disable all links to any website that provides user-name/password combinations to per-fectl0.com from any website owned or controlled by Google and shall not publish such username/password combinations to such websites in the future. (d) Notice under paragraphs (a) and (b) above may be provided by service on counsel of record for Google in any manner provided by the Federal Rules of Civil Procedure of copies of PERFECT 10 COPYRIGHTED IMAGES and/or listings of the URLs of the homepages of Infringing Websites. Such notice may be by computer disk or other means calculated to provide reasonable notice. PL’s Proposed Prelim. Inj. ¶ 1. III. DISCUSSION A. Legal Standard for Preliminary Injunction 1. General Principles “A preliminary injunction should be granted if a plaintiff can show either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tilt in the plaintiffs favor.” Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir.2003). In any preliminary injunction analysis, courts also look to “whether the public interest will be advanced by granting preliminary relief.” Preminger v. Principi, 422 F.3d 815, 823 (9th Cir.2005). 2. Affirmative Defenses Google does not contest that photographs are copyrightable subject matter or that PlO’s certificates of copyright registration. have sufficiently established its ownership. Google does, however, dispute PlO’s contention that its copyright interests have been directly infringed. Although Google admits creating and storing thumbnail copies of PlO’s full-size images (found on third-party websites), as well as displaying those thumbnails as search results on Google Image Search, it argues that such use is protected under the fair use doctrine, as codified by 17 U.S.C. § 107. “The plaintiffs burden of showing a likelihood of success on the merits includes the burden of showing a likelihood that it would prevail against any affirmative defenses raised by the defendant.” Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 924 F.Supp. 1559, 1562 (S.D.Cal.1996) (citing Atari Games Corp. v. Nintendo, 975 F.2d 832, 837 (Fed.Cir.1992)), aff'd, 109 F.3d 1394 (9th Cir.1997); accord Religious Tech. Ctr. v. Netcom Online Communication Servs., 923 F.Supp. 1231, 1242 n. 12 (N.D.Cal.1995) (“Even though fair use is an affirmative defense[,] plaintiffs, as the parties moving for a preliminary injunction, have the burden of proving a likelihood of success on their infringement claim, including the fair use defense.”); 2 William W. Schwarzer, et al., California Practice Guide, Federal Civil Procedure Before Trial ¶ 13:47 (2000); Vision-Ease Lens, Inc. v. Essilor Int’l SA, 322 F.Supp.2d 991, 995 n. 5 (D.Minn.2004) (citing Dr. Seuss). P10 points out that the Ninth Circuit, in affirming the district court’s ruling in Dr. Seuss, stated that because “fair use is an affirmative defense, [defendant] must bring forward favorable evidence” relevant to the fourth fair use factor. Dr. Seuss, 109 F.3d at 1403. However, the defendant had presented no evidence whatsoever on that factor. The Ninth Circuit stated that the absence of any evidence made it “impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitle^] the proponent of the defense ... to relief from the preliminary injunction.” Id. (internal quotations omitted) (alteration in original). The Ninth Circuit did not state or indicate that the district court erred in interpreting Plaintiffs burden of proving “likelihood of success on the merits” to include the “likelihood that [plaintiffs] would prevail against any affirmative defenses raised by the defendant.” That the Ninth Circuit required the defendants to submit some quantum of evidence does not mean it had placed the burden on defendant to show that it was entitled to the affirmative defense of fair use. P10 also cites A & M Records, Inc. v. Napster, Inc., 114 F.Supp.2d 896 (N.D.Cal.2000) [hereinafter “Napster /”], which stated that “defendant bears the burden of proving ... affirmative defenses” on a motion for preliminary injunction. Id. at 912 (citing Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n. 22 (11th Cir.1996)). On appeal, the Ninth Circuit did not conclusively resolve the issue. It merely stated, “[E]ven if plaintiffs bear the burden of establishing that they would likely prevail against Napster’s affirmative defenses at the preliminary injunction stage, the record supports the district court’s conclusion that Napster users do not engage in fan-use of the copyrighted materials.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 n. 3 (9th Cir.2001) (emphasis added). This qualified language does not necessarily suggest that the defendant bears the burden of proving the affirmative defense at the preliminary injunction phase. Indeed, the Ninth Circuit’s analysis proceeded under the assumption that plaintiffs shouldered the burden. Furthermore, the Eleventh Circuit Bateman decision upon which the district court relied did not involve a preliminary injunction. Accordingly, the Court will follow Dr. Seuss’s conclusion that P10, on its motion for preliminary injunction against Google, carries the burden of overcoming Google’s fair use defense. 3. Prohibitory v. Mandatory Injunction Google tries to characterize the relief P10 seeks as “mandatory” and points out that “ ‘mandatory preliminary relief is subject to heightened scrutiny and should not be issued unless the facts and law clearly favor the moving party.” Dahl v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir.1993); see also Stanley v. Univ. of Southern California, 13 F.3d 1313, 1320 (9th Cir.1994). P10 contends, however, that “an injunction that requires a defendant to refrain from performing present and continuing acts causing injury is prohibitory,” not mandatory. See First Union Nat. Bank v. Burke, 48 F.Supp.2d 132, 142-143 (D.Conn.1999). “The distinction between mandatory and prohibitory injunctions is not without ambiguities.... ” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir.1995). “[Mjany prohibitory injunctions can easily be restated in a manner that makes them appear mandatory in effect.” First Union Nat. Bank, 48 F.Supp.2d at 143. The Court agrees with P10. The proposed injunction would be essentially prohibitory in nature, because it would require Google to cease its allegedly infringing activities. Whatever active steps Google might have to undertake would merely be the means of discontinuing acts of infringement. B. Likelihood of Success P10 asserts that Google is both directly and secondarily liable for copyright infringement. P10 alleges that Google’s image search engine directly infringes by copying, distributing, and displaying thumbnails and full-size images of PlO’s copyrighted photographs. P10 alleges that Google is secondarily hable for the actions of third-party websites that host infringing images and unauthorized per-fectl0.com username/password combinations to which Google’s search engine links, as well for the actions of individuals who are led by Google Image Search to infringing images and subsequently download infringing copies themselves. Google raises several defenses. First, in response to PlO’s direct infringement claims, it argues that (1) many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and (2) to the extent that its actions do implicate those rights, such use is fair under 17 U.S.C. § 107. Second, in response to PlO’s secondary liability claims, Google contends that (1) it has not eontrib-utorily or vicariously infringed; (2) it is immune from contributory liability under Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) [hereinafter “Sony”]; and (3) it qualifies for protection under the various safe harbor provisions of the DMCA, 17 U.S.C. § 512(a)-(d). 1. Direct Infringement To establish direct copyright infringement, a plaintiff must prove two elements: (1) ownership of a valid copyright, and (2) violation of one of the exclusive rights granted under copyright. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). a. What Actions by Google Allegedly Constitute Direct Infringement? Although 17 U.S.C. § 106 sets forth six exclusive rights of a copyright holder, the rights in question here are the right to display publicly, the distribution right, and the reproduction right. P10 alleges that Google directly infringes in that it both (1) displays and distributes full-size images hosted by third-party websites, and (2) creates, displays, and distributes thumbnails of PlO’s copyrighted full-size images. P10 contends that these displays and distributions of copyrighted material extend to cell phones as well as computers. Google concedes that it creates and displays thumbnails; it denies that it “displays,” creates, or distributes what is depicted in the lower frame; and it challenges PlO’s argument that any of its activities can be the basis for direct infringement. The Court will address PlO’s contentions about framed, full-size images first. b. As to “In-Line Linking,” What Constitutes a “Display”? There is no dispute that Google “in-line links” to and/or “frames” content that, in fact, is stored on and served by other websites. Whether that conduct constitutes a “display” for purposes of copyright law is the issue. The terms “link” and “in-line link” can be used in two distinct, but related, ways. “Link” is most commonly used to refer to text or image “hyperlinks” that are displayed on a webpage and that when clicked by the user, transport him to a new page. “In-line link” refers to the process whereby a webpage can incorporate by reference (and arguably cause to be displayed) content stored on another website. Kelly v. Arriba Soft Corp., 336 F.3d 811, 816 (9th Cir.2003) [hereinafter “Kelly II”] (“The in-line link instructs the user’s browser to retrieve the linked-to image from the source website and display it on the user’s screen, but does so without leaving the linking document.”). There are at least two approaches to defining “display” in the context of in-line linking: what the Court will call (1) a “server” test and (2) an “incorporation” test. The differences in the “server” and “incorporation” tests can be illustrated if we return to the example of SoccerMA-NIA.com. See supra note 7. That fictitious website might contain a single webpage with the text, “We proudly show this photo,” below which appears a photo of the legendary soccer great Pelé that he (Pelé) copyrighted. The mere fact that the Pelé photo appears on SoccerMANIA’s web-page does not necessarily mean that the photo (or even a copy of it) is stored on or transferred via SoccerMANIA.com. Using standard HTML, Soccer MAN IAxom’s webpage might, in fact, be in-line linking to the Pelé photo stored on, say, “Soccer-PASSION.com.” If that is the case, when the person seeking to visit SoccerMA-NIAcom’s webpage uses his browser, the browser would (1) download SoccerMA-NIAxom’s webpage, (2) parse through the various HTML commands of that web-page, (3) per HTML code, display the text “We proudly show this photo,” (4) also per HTML code, follow an in-line link to the image stored on SoccerPASSION.com, (5) download the photo to the user’s computer directly from SoccerPASSION.com, and (6) display the image in the browser below the text. Because the visitor cannot see any of these actions take place, he probably—but mistakenly—will assume that the copyrighted photo of Pelé is stored on and served by SoccerMANIA.com. Indeed, even though the image was actually transferred directly from SoccerPASSION.com, the address shown on the user’s browser will still indicate something akin to “http://www.SoccerMANIA.com/web-page.html”. This is because browsers display the address of the file (here, a web-page) that they are currently rendering; they do not in any way indicate the location from which each component element of a webpage (such as an image) originates. The question, then, is whether Soecer-MANIA.com, SoccerPASSION.com, or both have “displayed” the copyrighted Pelé photo. i. The Server Test Embraced by Google From a technological perspective, one could define “display” as the act of serving content over the web—ie., physically sending ones and zeroes over the internet to the user’s browser. Adopting this definition, as Google urges the Court to do, SoccerPASSION.com would be the entity that “displays” the Pelé image, and Soccer-MANIA.com would not risk liability for direct infringement (regardless of whether its in-line linking would otherwise qualify as fair use). ii. The Incorporation Test Embraced by P10 From a purely visual perspective, one could define “display” as the mere act of incorporating content into a webpage that is then pulled up by the browser—e.g., the act by SoccerMANIA.com of using an inline link in its webpage to direct the user’s browser to retrieve the Pelé image from SoccerPASSION.com’s server each time he navigates to SoccerMANIA.com. P10 urges the Court to adopt this definition. Under it, SoccerMANIA.com, as the host of its own webpage which incorporates the Pelé photo from SoccerPASSION.com, would be the entity that “displays” that image. As opposite ends of a spectrum, the server and incorporation tests both are susceptible to extreme or dubious results. Under the server test, someone could create a website entitled “Infringing Content For All!” with thousands of in-line links to images on other websites that serve infringing content. That website, however, would be immune from claims of direct infringement because it does not actually serve the images. On the other hand, under the incorporation test, any website that in-line links to or frames third-party content would risk liability for direct infringement (putting aside the availability of an affirmative defense) even if that website discloses the identity of the actual server of the image. Thus, SoccerMA-NIA.com would expose itself to suit for direct infringement even if the text of its webpage had stated: ATTENTION FBI: We did not take the picture, and it is not served by Soecer-MANIA.com. It is probably subject to copyright. We maintain this site to help authorities identify potentially infringing images on the web. The image of Pelé is stored on and served by SoccerPASSION.com. Please investigate. To adopt the incorporation test would cause a tremendous chilling effect on the core functionality of the web—its capacity to link, a vital feature of the internet that makes it accessible, creative, and valuable. iii. Existing Precedents Only a few courts have addressed the question of whether hyperlinking constitutes “displaying” that infringes a copyright holder’s exclusive right to display his work. Fewer have considered in-line linking or framing. P10 cites Playboy Enters., Inc. v. Webbworld, Inc., 991 F.Supp. 543 (N.D.Tex.1997). There, Defendant Webbworld, an adult website, received a “news feed” of nude photos from adult internet newsgroups, downloaded them to its computers, and then uploaded them to its own publicly accessible webservers. Id. at 549-50. The photos included Playboy’s copyrighted images. Webbworld then charged internet users a monthly subscription fee to view the images on its website. Id. at 550. The district court concluded that Webb-world “displayed” Playboy’s photos because it caused them to be shown on users’ computers and because “[t]he image existed in digital form on Webbworld’s servers.” Id. at 551-52 (emphasis added). Here, it is undisputed that Google does not store or serve any full-size images. Similarly, in Playboy Enters., Inc. v. Russ Hardenburgh, Inc., 982 F.Supp. 503 (N.D.Ohio 1997), also cited by P10, Defendant Rusty-N-Edie’s, Inc. (“RNE”) operated an electronic bulletin board through its own computers onto which paying subscribers could upload various fries and then receive access to, and the right to download, all the files that other subscribers had uploaded. Id. at 505-506. When users downloaded files from the bulletin board, those files were transferred to the user’s computer directly from RNE’s computers (not from the original uploader’s computer). The court concluded that RNE had publicly displayed and distributed the files posted on the bulletin board. The court relied, in part, on the fact that after reviewing the files in the upload queue, RNE moved them to its own servers that were available to other subscribers. Id. at 512-13. Unlike RNE, however, Google does not store or serve any full-size images on Google Image Search. In Perfect 10, Inc. v. Cybernet Ventures, Inc., 167 F.Supp.2d 1114 (C.D.Cal.2001), Defendant Cybernet Ventures, Inc. (“Cy-bernet”) ran a website called “adult-check.com” which functioned as a gateway to other adult web sites. Paying subscribers would receive access to “the content on any of the related sites within the Adult Check ‘family.’ ” Id. at 1118. As it does here, Perfect 10 argued that Cybernet directly infringed its copyrighted images. The court denied summary judgment for Cybernet because it lacked sufficient information regarding how Cybernet’s systems interacted with those of its partners, noting “Cybernet may have [had] a direct role in the infringement.” Id. at 1122. The court did not discuss whether Cybernet had stored or served any of the infringing content. But in a later decision on a motion for preliminary injunction, the same court expressed doubt that liability for direct infringement could be found because Cybernet did not store or serve the infringing content: Based on the evidence before the Court it appears that Cybernet does not use its hardware to either store the infringing images or move them from one location to another for display. This technical separation between its facilities and those of its webmasters prevents Cyber-net from engaging in reproduction or distribution, and makes it doubtful that Cybernet publicly displays the works.... The Court therefore concludes that there is little likelihood that Perfect 10 will succeed on its direct infringement theory. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1168-69 (C.D.Cal.2002) (emphasis added). In its now-withdrawn opinion in Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir.2002) [hereinafter, “Kelly I”], amended by Kelly II, 336 F.3d 811 (9th Cir.2003), the Ninth Circuit discussed liability for direct infringement resulting from in-line linking, without addressing how the technology functioned—i.e., who stored and served the infringing content. Defendant Arriba operated an image search engine much like Google’s—it in-line linked to and framed, but did not store or serve, full-size copies of Kelly’s photographs. Stating that “[n]o cases have addressed the issue of whether inline linking or framing violates a copyright owner’s public display rights,” id. at 945, the Ninth Circuit nevertheless analogized to Webbworld and Hardenburgh, ignored the fact that the defendants in those two cases actually hosted and served the infringing content, and concluded that Arriba had directly infringed Kelly’s exclusive right to display. Kelly I, 280 F.3d at 945-47. Like the defendants in Webbworld and Hardenburgh, Arriba is directly liable for infringement. Arriba actively participated in displaying Kelly’s images by ... having its program inline link and frame those images within its own web site. Without this program, users would not have been able to view Kelly’s images within the context of Arriba’s site. Arriba acted as more than a passive conduit of the images by establishing a direct link to the copyrighted images. Therefore, Arriba is liable for publicly displaying Kelly’s copyrighted images without his permission. Id. at 947. The decision in Kelly I was roundly criticized: If [the] logic [of the original opinion in Kelly] is valid, it should ensnare AOL, Dell, Microsoft, and Netscape as well. Indeed, it condemns those other actors a fortiori: the user of those products can see Kelly’s entire web site displayed, whereas Arriba only offers a portion of Kelly’s material, framed by its own proprietary content. Accordingly, Arriba’s usurpation of Kelly’s display right is even less than the others.’ 4 Nimmer on Copyright [hereinafter “Nimmer”] § 12B.01[A][2] (2005). Some seventeen months later, perhaps “reflecting] sub silentio that the panel no longer believed in the substance of its much-criticized conclusion,” id., the Ninth Circuit withdrew the portion of the Kelly I opinion dealing with direct infringement on procedural grounds. Kelly II, 336 F.3d at 817 (“[W]e conclude that the district court should not have reached the issue [of whether Arriba’s framing of full-size images constitutes direct infringement] because neither party moved for summary judgment as to the full-size images-”). Kelly I dealt with an image stored on and served by a third-party website and incorporated into a defendant search engine’s website via in-line linking and framing. Kelly II declined to address whether that conduct constituted direct infringement. Its description of how Arriba functioned is nevertheless useful: In-line linking allows one to import a graphic from a source website and incorporate it in one’s own website, creating the appearance that the in-lined graphic is a seamless part of the second web page. The in-line link instructs the user’s browser to retrieve the linked-to image from the source website and display it on the user’s screen, but does so without leaving the linking document. Thus, the linking party can incorporate the linked image into its own content. As a result, although the [full-size] image in Arriba’s ... page came directly from the originating web site and was not copied onto Arriba’s server, the user would not realize that the image actually resided on another web site. Kelly II, 336 F.3d at 816. Although such conduct is potentially actionable under secondary liability theories, in terms of direct infringement, Kelly II provides no guidance; the Ninth Circuit just has not settled the question of whether the in-line linking to and framing of content hosted by third-party websites constitutes a “display.” Certain other decisions, some unpublished, do deal with traditional hyperlink-ing'—ie., rather than incorporating third-party content via in-line linking or framing, websites create hyperlinks that transport the user directly to the linked-to, infringing page. Each of these cases holds that such linking does not implicate any of the exclusive rights under copyright. Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654, 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (unpublished) (“[H]yperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved.”); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n. 12 (N.D.Cal.2004) (“[H]yper-linking per se does not constitute direct copyright infringement because there is no copying, [although] in some instances there may be a tenable claim of contributory infringement or vicarious liability.”); Bernstein v. JC Penney, Inc., No. 98-2958, 1998 WL 906644, at *1 (C.D.Cal. Sept. 29, 1998) (unpublished) (granting, without discussion, defendant’s motion to dismiss on the ground that hyperlinking cannot constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement). These cases, however, are distinguishable because in none of them did defendant actually display anything (or, in the case of Arista Records, distribute anything). In contrast, Google’s in-line linking causes the appearance of copyrighted content on Google’s webpage, even though that content may have been stored on and served by third-party websites. Hard Rock Cafe Int’l (USA) Inc. v. Morton, No. 97 Civ. 9483, 1999 WL 717995 (S.D.N.Y. Sept. 9, 1999) (unreported), involved trademark, not copyright claims, but is factually analogous. Plaintiff Hard Rock Cafe (“HRCI”) sought to enforce a license agreement with the defendant that precluded the defendant from using the Hard Rock Hotel mark to sell merchandise outside certain permitted means. Granting in part the plaintiffs request, the court ordered the defendant to “cease framing” a website that used the trademark to promote the sale of CDs by a company referred to as “Tunes.” The court suggested that in cases involving framed web content, direct trademark infringement may turn on how “smoothly integrated” the two frames are: Defendants emphasize that the CDs are sold by Tunes, not Hard Rock Hotel, and argue that hyperlinks on Hard Rock Hotel’s web site “do not involve further ‘uses’ of the Hard Rock Hotel Marks” because hyperlinks “are merely technical connections between two independent sources of content.” Whether or not this is true with respect to hyperlinks, it is not true with respect to framing. Framing is far more than a “technical connection between two independent sources of material.” Through framing, the Hard Rock Hotel Mark and the Tunes site are combined together into a single visual presentation.... Because the Tunes material appears as a window within the original linking page, it is not clear to the computer user that she or he has left the Hard Rock Hotel web site. The domain name appearing at the top of the computer screen, which indicates the location of the user in the World Wide Web, continues to indicate the domain name of Hard Rock Hotel, not that of Tunes. The Tunes web page is reached in the same fashion as any other section of the Hard Rock Hotel web site, by clicking on a button labeled “record store” which resembles the other buttons leadr ing to web pages maintained by Hard Rock Hotel .... The Hard Rock Hotel web site and the Tunes web page are thus smoothly integrated. In light of this seamless presentation of the Tunes web page within the Hard Rock Hotel web site, the only possible conclusion is that the Hard Rock Hotel Mark is used or exploited to advertise and sell CDs. Id. at *25 (emphasis added; internal citations omitted). In a footnote, the Court suggested that it might have ruled the other way had defendant’s website (whose webpage created the frame structure), “indicate[d] to the user that he or she ha[d] retrieved a ... web page run by a separate company ....” Id. n. 16. Trademark infringement typically concerns issues not applicable to. copyright infringement, such as market confusion and passing off. Thus, it does not necessarily follow from Hard Rock that in assessing whether, for purposes of direct copyright infringement, a work has been “displayed” in a webpage, courts must look to how seamless the transition is between the two frames. iv. “Display” for Purposes of Full Size Images The Court concludes that in determining whether Google’s lower frames are a “display” óf infringing material, the most appropriate test is also the most straightforward: the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that “displays” the content. Thus, the Court adopts the server test, for several reasons. First, this test is based on what happens at the technological-level as users browse the web, and thus reflects the reality of how content actually travels over the internet before it is shown on users’ computers. Persons who view the full-size “image in its original context” (ie., the lower frame) after clicking on one of the thumbnails that Google Image Search aggregated, are not viewing images that Google has stored or served. Rather, their computers have engaged in a direct connection with third-party websites, which are themselves responsible for transferring content. Second, adoption of the server test neither invites copyright infringing activity by a search engine such as Google nor flatly precludes liability for such activity. This test will merely preclude search engines from being held directly liable for in-line linking and/or framing infringing content stored on third-party websites. Copyright owners may still seek, as P10 does, to impose contributory or vicarious liability on websites for the inclusion of such content. Such secondary liability will require analysis of the different set of factors discussed in Section III.B.3 of this Order. Third, website operators can readily understand the server test and courts can apply it relatively easily. To be sure, the incorporation test, which would have courts look at the URL displayed in the browser’s address bar, also can be applied relatively easily. But that test fails to acknowledge the interconnected nature of the web, both in its physical and logical connections and in its ability to aggregate and present content from multiple sources simultaneously. Fourth, here the initial direct infringers are the websites that stole PlO’s full-size images and posted them on the internet for all the world to see. P10 would not have filed suit but for their actions. Finally, the server test maintains, however uneasily, the delicate balance for which copyright law strives—i.e., between encouraging the creation of creative works and encouraging the dissemination of information. Merely to index the web so that users can more readily find the information they seek should not constitute direct infringement, but to host and serve infringing content may directly violate the rights of copyright holders. Applying the server test, the Court concludes that for the purposes of direct copyright infringement, Google’s use of frames and in-line links does not constitute a “display” of the full-size images stored on and served by infringing third-party websites. Thus, PlO’s claim of direct infringement with respect to these actions will likely fail. c. “Display” for Purposes of Thumbnails Applying the server test to Google’s use of thumbnails the Court finds that Google does “display” thumbnails of PlO’s copyrighted images. Google acknowledges that it creates and stores those thumbnails on its own servers—and that upon receiving search queries, it responds by displaying a grid of those thumbnails. d. What Constitutes a “Public Distribution”? The foregoing considerations also inform whether Google directly infringes PlO’s distribution right. With respect to PlO’s full-size images, Google does not. A distribution of a copyrighted work requires an “actual dissemination” of copies. See In re Napster, Inc. Copyright Litigation, 377 F.Supp.2d 796, 802-804 (N.D.Cal.2005); accord Nimmer § 8.11[A]. In the internet context, an actual dissemination means the transfer of a file from one computer to another. Although Google frames and in-line links to third-party infringing websites, it is those websites, not Google, that transfer the full-size images to users’ computers. Because Google is not involved in the transfer, Google has not actually disseminated—and hence, and has not distributed—the infringing content. See In re Napster, 377 F.Supp.2d at 802-804 (N.D.Cal.2005) (finding that Napster had not “distributed” songs in light of the fact that the “infringing works never resided on the Napster system,” and therefore, Napster could not have transferred copyrighted content to its users). Accordingly, the Court concludes that by merely framing and in-line linking to third-party websites, Google has not “distributed” infringing copies of PlO’s copyrighted full-size photographs. 2. Fair Use Having found that the thumbnails directly infringe PlO’s copyrights, the Court turns to Google’s affirmative defense of fair use. Google argues that its creation and display of thumbnails is fair under 17 U.S.C. § 107. “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.... ’ U.S. Const., Art. I, § 8, cl. 8.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). This notion was codified in 17 U.S.C. § 107: [T]he fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching[,] scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Although often discussed within the context of the first factor, “the public interest is also a factor that continually informs the fair use analysis.” Nimmer § 13.05[B][4]; see also Sony Computer Entm’t America, Inc. v. Bleem, LLC, 214 F.3d 1022, 1027 (9th Cir.2000); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir.1992) (“[W]e are free to consider the public benefit resulting from a particular use.... ”). Courts are to consider “these factors in light of the objectives of copyright law, rather than view them as definitive or determinative tests.” Kelly II, 336 F.3d at 818. a. Purpose and Character of Use “[T]he preamble to Section 107 ... enumerate^] certain purposes that are most appropriate for a finding of fair use: ‘criticism, comment, news reporting, teaching!,] scholarship or research.’ ” Nimmer § 13.05[A][l][a]. “The central purpose of [the first fair use factor] is to see ... whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’ ” Campbell, 510 U.S. at 579, 114 S.Ct. 1164. Although the Supreme Court has stated that “every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright,” Sony, 464 U.S. at 451, 104 S.Ct. 774, this pronouncement does not preclude a finding that a defendant’s commercial use may nevertheless be fair. Kelly II, 336 F.3d at 818 (citing Campbell, 510 U.S. at 579, 114 S.Ct. 1164). Furthermore, “[t]he more transformative the new work, the less important the other factors, including commercialism, become.” Id. i. Commercial Versus Noncommercial Use In assessing whether a use is commercial, the focus here is not on the individuals who use Google Image Search to locate PlO’s adult images. Nor is it on whether their subsequent use of the images is noncommercial {e.g., titillation) or commercial {e.g., to print and sell). Rather, it is Google’s use that the Court is to consider. That use, P10 contends, is commercial in nature. The Court agrees. Courts have defined “commercial uses” extremely broadly. See Nimmer § 13.05[A][l][c] (providing examples). Google unquestionably derives significant commercial benefit from Google Image Search in the form of increased user traffic'—and, in turn, increased advertising revenue. The more people who view its pages and rely on its search capabilities, the more influence Google wields in the search engine market and (more broadly) in the web portal market. In turn, Google can attract more advertisers to its Ad-Sense and AdWords programs. That Google’s use of thumbnails is commercial, however, does not necessarily weigh heavily in favor of P10. In Kelly II, supra, the Ninth Circuit acknowledged that Arriba’s use was commercial, yet concluded that that fact “weighted] only slightly against a finding of fair use” because “Arriba was neither using Kelly’s images to directly promote its web site nor trying to profit by selling Kelly’s images.” Kelly II, 336 F.3d at 818. The court found that the creation and use of thumbnails to display Arriba’s image search results were “more incidental and less exploitative in nature than more traditional types of commercial use.” Id. Google Image Search automatically scours the internet via its web crawler software to find and catalog images. For each image, Google records information about it and creates a thumbnail copy. The thumbnail is then stored in Google’s cache for later display when users perform an image search. When an image search is performed, Google displays a grid of thumbnails that Google has algorithmically determined are responsive to the search string based on the text of the originating webpage surrounding the image. When a user clicks on one of the thumbnails, he is taken to the two-frame page discussed above. In these respects, Google functions like Arriba’s search engine. But unlike Arriba, Google offers and derives commercial benefit from its Ad-Sense program. AdSense allows' third party websites “to carry Google-sponsored advertising and share revenue that flows from the advertising displays and click-throughs.” Def.’s MacGillivray Decl. ¶ 10. If third-party websites that contain infringing copies of P10 photographs are also AdSense partners, Google will serve advertisements on those sites and split the revenue generated from users who click on the Google-served advertisements. Google counters that its AdSense Program Policies prohibit a website from registering as an AdSense partner if the site’s webpages contain images that appear in Google Image Search results: “In order to avoid associations with copyright claims, website publishers may not display Google ads on web pages with ... Image Results.” Id. ¶ 11. However, Google has not presented any information regarding the extent to which this purported policy is enforced. Nor has it provided examples of AdSense partners who were terminated because of violations of this policy. In contrast, P10 has submitted numerous screenshots of third-party websites that serve infringing content and also appear to be receiving and displaying AdSense ads from Google. Pl.’s Zada Decl., Exs. 28-29. AdSense unquestionably makes Google’s use of thumbnails on its image search far more commercial than Arriba’s use in Kelly II. Google’s thumbnails lead users to sites that directly benefit Google’s bottom line. Id., Ex. 6 (Second Quarter Fiscal 2005 Report) at 98 (“Revenues generated on Google’s partner sites, through Ad-Sense programs, contributed $630 million, or 46% of total revenues.... ”). Google has a strong incentive to link to as many third-party websites as possible—including those that host AdSense advertisements, ii. Transformative Versus Consumptive Use That a use is commercial does not preclude a defendant from tipping the balance back to a finding of fair use by showing that its use is “transformative,” as opposed to “consumptive.” A consumptive use is one in which defendant’s “use of the images merely supersede^] the object of the originals ... instead [of] add[ing] a further purpose or different character.” Kelly II, 336 F.3d at 818. Whether a use is transformative depends in part on whether it serves the public interest. See Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F.Supp. 1361, 1379 (N.D.Cal.1995) (“Netcom’s use, though commercial, also benefits the public in allowing for the functioning of the Internet and the dissemination of other creative works, a goal of the Copyright Act.”); Sega Enters., 977 F.2d at 1522-23 (intermediate copying to reverse engineer software is fair use .despite commercial nature of activity in light of public benefit). P10 argues that Google’s use of thumbnails is consumptive rather than transfor-mative since Google “provides the exact same images through the exact same medium ... as does Perfect 10.” Whether thumbnails are identical copies of their full-size counterparts is debatable. A thumbnail contains significantly less pixel data (and hence, less image detail) than does the full-size image. The more complex or nuanced the original full-size image, the less exact is the replicated viewing experience—i.e., at some point viewers can no longer discern many of the fine details that were once visible in the full-size image. On the other hand, thumbnails are not “cropped” in any way, and if few or no important details have been lost, they do convey the full expression—they achieve pretty much the same effect—as the original full-size images. Merely because Google’s thumbnails are not cropped does not necessarily make them exact copies of PlO’s images, but the record currently before the Court does suggest that the thumbnails here closely approximate a key function of PlO’s full-size originals, at least to the extent that viewers of PlO’s photos of nude women pay little attention to fine details. Google’s use of thumbnails does not supersede PlO’s use of full-size images. In the final analysis, PlO’s use is to provide “entertainment,” both in magazines and on the internet. For some viewers, PlO’s use of the photos creates or allows for an aesthetic experience. Google, in contrast, does not profit from providing adult content, but from locating, managing, and making information generally more accessible, and therefore more attractive to advertisers. Google is focused almost exclusively on the web and is involved in a wide variety of internet-related projects (e.g., web search, desktop search, newsgroup search, map and directory services, academic research, and language translation services). In this respect, Google’s wide-ranging use of thumbnails is highly trans-formative: their creation and display is designed to, and does, display visual search results quickly and efficiently to users of Google Image Search. The Ninth Circuit’s opinion in Kelly II is particularly instructive on this point: Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose. Arriba’s search engine functions as a tool to help index and improve access to images on the internet and their related web sites. In fact, users are unlikely to enlarge the thumbnails and use them for artistic purposes because the thumbnails are of much lower-resolution than the originals; any enlargement results in a significant loss of clarity of the image, making them inappropriate as display material. Kelly asserts that because Arriba[’s thumbnails] reproduced his exact images and added nothing to them, Arriba’s use cannot be transformative. Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. Those cases are inapposite, however, because the resulting use of the copyrighted work in those cases was the same as the original use. For instance, reproducing music CDs in computer MP3 format does not change the fact that both formats are used for entertainment purposes. Likewise, reproducing news footage into a different format does not change the ultimate purpose of informing the public about current affairs. * * :|: * :Jí :¡: This case involves more than merely a retransmission of Kelly’s images in a different medium. Arriba’s use of [thumbnails] serves a different function than Kelly’s use—improving access to information on the internet versus artistic expression. Furthermore, it would be unlikely that anyone would use Arri-ba’s thumbnails for illustrative or aesthetic purposes because enlarging them sacrifices their clarity. Because Arri-ba’s use is not superseding Kelly’s use but, rather, has created a different purpose for the images, Arriba’s use is transformative. * * * * * * Arriba’s use of Kelly’s images [to create and display thumbnails] promotes the goals of the Copyright Act and the fair use exception. The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information-gathering techniques on the internet. Kelly II, 336 F.3d at 818-820. It is by now a truism that search engines such as Google Image Search provide great value to the public. Indeed, given the exponentially increasing amounts of data on the web, search engines have become essential sources of vital information for individuals, governments, nonprofits, and businesses who seek to locate information. As such, Google’s use of thumbnails to simplify and expedite access to information is transformative of PlO’s use of reduced-size images to entertain. But that does not end the analysis, because Google’s use is simultaneously consumptive as well. In early 2005, after it filed suit against Google, P10 entered into a licensing agreement with Fonestarz Media Limited for the sale and distribution of P10 reduced-size images for download to and use on cell phones. Google’s use of thumbnails does supersede this use of PlO’s images, because mobile users can download and save the thumbnails displayed by Google Image Search onto their phones. Google’s thumbnail images are essentially the same size and of the same quality as the reduced-size images that P10 licenses to Fonestarz. Hence, to the extent that users may choose to download free images to their phone rather than purchase PlO’s reduced-size images, Google’s use supersedes PlO’s. In Kelly II, the Ninth Circuit found the first fair use factor to weigh in favor of Arriba. Kelly II, 336 F.3d at 820 (“[T]his first factor weighs in favor of Arriba due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images.”). Here, because Google’s use of thumbnails is more commercial than Arri-ba’s and because it is “consumptive” with respect to PlO’s reduced-size images, the Court concludes that this factor weighs slightly in favor of P10. b. Nature of Copyrighted Work “ ‘Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works.’ ” Kelly II, 336 F.3d at 820 (citing A & M Records, 239 F.3d at 1016). “Photographs that are meant to be viewed by the public for informative and aesthetic purposes ... are generally creative in nature.” Id.; accord Elvis Presley, 349 F.3d at 629 (“[P]hotographs taken for aesthetic purposes, are creative in nature and thus fit squarely within the core of copyright protection.”). “The fact that a work is published or unpublished also is a critical element of its nature” given a copyright holder’s right of first publication. Kelly II, 336 F.3d at 820 (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). “Published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred.” Id. In Kelly II, however, the Ninth Circuit found that Kelly’s photographs, although creative, had “appeared on the internet before Arriba used them in its search image.” Kelly II, 336 F.3d at 820. Partly for that reason, the Ninth Circuit concluded that although the second statutory fair use factor weighed in favor of Kelly, its weight was slight. Id. Similarly, here, although PlO’s images are “creative,” they, too, have previously been published, both in print and on the web. Thus, as in Kelly II, the Court concludes that this factor weighs only slightly in favor of P10. c. Amount and Substantiality of the Portion Used “While wholesale copying does not preclude fair use per s