A petition for rehearing en banc has been filed in the US Court of Appeals for the Ninth Circuit seeking reconsideration of a three-judge panel decision issued in February in the case of Kelly v. Arriba Soft Corporation, No. 00-55521.

The case involves the practice of inline linking to copyrighted image files for display as search results.  Although the panel's ruling rejected the copyright holder's claim that thumbnail images in the search result pages infringed, it nevertheless held that the search engine could not direct browsers to the original photograph via a link.  In a recent editorial in the Financial Times, Patty Waldmeir labeled this "a dangerous if little noticed decision."

The Electronic Frontier Foundation has filed a friend of the court brief in support of the petition for rehearing, stating in a press release that: "By concluding that these common linking techniques infringe copyright law, the Ninth Circuit has seriously threatened linking on the Web."

Denise Howell points out that the linking techniques at issue may not be so common, because the search results page displayed the copyrighted material "in its original, full-sized format, exactly as it would appear on Kelly's site."  Further parsing the decision, Denise states: "The Court reasoned that the search engine could function perfectly using thumbnail images instead of full-sized ones, and that linking through a full-sized image harmed Kelly by doing away with the need to visit the originating site in order to view the image in all its full-sized glory."

Lights number 2, 3 and 4 go to Denise Howell, Ernest Svenson, and Dave Winer.  Within the span of a day, these fine lawyers, bloggers, and technologists all pointed to efforts I'm making with Radio over on some pages I publish for the Court.  The encouragement is well-appreciated. 

Now if only some other public-sector and court folks would sign on to the idea . . . 

The Colorado Supreme Court announced a decision on Monday in Tattered Cover, Inc. v. City of Thornton. Relying on both the Colorado and United States Constitution, the court determined that a police search warrant for the book-buying records of a criminal suspect was unreasonable. The Court held that the information sought by the search warrant implicated a fundamental right protected by the state and federal constitutions, that is, the "fundamental right to purchase books anonymously, free from governmental interference." [Id. at 2.]

In deciding whether this fundamental right was unfairly abridged, the Colorado Supreme Court applied this balancing test:

We hold that the Colorado Constitution requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to execution of a search warrant seeking customer purchase records. At that hearing, the court must apply a balancing test to determine whether the law enforcement need for the search warrant outweighs the harm to constitutional interests caused by its execution. In order for law enforcement officials to prevail, they must demonstrate a compelling governmental need for the specific customer purchase records that they seek. When conducting the balancing test, the court may consider whether there are reasonable alternative methods of meeting the government's asserted need, whether the search warrant is unduly broad, and whether law enforcement officials seek the purchase records for reasons related to the content of the books bought by any particular customer.

Importantly, the decision recognizes the right of an innocent information provider to be afforded an adversarial hearing prior to the execution of a search warrant that seeks to obtain book-buying records.