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9th Circuit Court Finds 'Thumbnailing' Fair Use 266

Posted by timothy
from the lo-res-things-in-small-packages dept.
mark_wilkins writes "A photographer named Leslie Kelly had sued Arriba Soft Corporation for infringing his copyrights to photos when they made thumbnails of his pictures and stored them in a public image search engine. Today the federal 9th Circuit Court of Appeals affirmed the district court's ruling that making these thumbnail copies of images for the search engine was 'fair use.' Since the applicability of fair-use defenses to copyright infringement touches on all kinds of common uses of the Internet as well as rulemaking related to the scope of the DMCA, this decision will probably have an effect on the discussion. (Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)" Note that the court also reversed in part the lower court's ruling, specifically saying that the lower court should not have ruled on "whether the display of the larger image is a violation of Kelly's exclusive right to publically display his works."
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9th Circuit Court Finds 'Thumbnailing' Fair Use

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  • Good (Score:5, Funny)

    by Anonymous Coward on Monday July 07, 2003 @06:09PM (#6386478)
    Hopefully the RIAA wont object to me distributing thumbnails of music as MP3's

    One small step for law, one giant leap for freedom!
    • Re:Good (Score:5, Interesting)

      by tuxlove (316502) on Monday July 07, 2003 @06:42PM (#6386772)
      Hopefully the RIAA wont object to me distributing thumbnails of music as MP3's

      Actually, music "thumbnails" are legal. How do you think retail sites such as Amazon offer 30-second song clips? The wisdom in the business is that 30 second clips (this is the magic number for some reason) are perfectly legal to allow people to access without payment. However, it may be that it has to be done in the context of music sales. Simply putting a (preferably deep) link to a retail site on a web page bearing song clips is probably good enough.
      • Re:Good (Score:5, Insightful)

        by Anonymous Coward on Monday July 07, 2003 @06:54PM (#6386857)
        They weren't displaying a portion of his image, they were displaying his whole image, only smaller. The logical equivalent for music would be the entire song at an extremely low bitrate.

        The logical equivalent of a 30 second music clip is to display a portion of the normal resolution image.
      • Re:Good (Score:5, Funny)

        by dead sun (104217) <aranach@[ ]il.com ['gma' in gap]> on Monday July 07, 2003 @06:57PM (#6386876) Homepage Journal
        So then if tons of people took different 30 second clips and posted them, with said links, maybe we could create some software to grab enough clips to reconstruct. The grabbing the clips couldn't be inherently illegal since we're allowed to harmlessly do so now. Probably the process of reconstruction would be made to be the illegal act. However, if that takes place client side, the RIAA would be hard pressed to track illegal downloaders, since the downloading aspect wouldn't be illegal. Then maybe they'd have to come up with ideas to really pester fans.
        • Don't Get Excited (Score:4, Interesting)

          by reallocate (142797) on Monday July 07, 2003 @07:32PM (#6387124)
          Careful. This ruling does not mean "we're allowed to harmlessly" copy CD's.

          The ruling specifically nooted that Arriba removed the full-size images after making the thumbnails, and that the thumbnails can not be converted into a duplicate of the orginal image. This is equivalent to being unable to reconstruct the complete, original track.

          Wait and see what happens next. Is Arriba finished with the legal process?

          And, finally, this decision does not set a precedent.
          • I know replying to your own post is a sign of memory loss, but...

            If I was an RIAA lawyer, I would argue that this ruling upholds the traditional concept of fair use as not encompassing a true and faithful reproduction of the entirety of a work.

            I wouldn't be happy about this ruling, but I could make a case that the ruling does not bear on the legality of serving duplicate tracks on the Internet.
            • Not saying that it was something to get excited over in the sense that suddenly it would be legal to make duplications of a music track. All I was saying was that if there were enough 30 second clips all over the place then the legality of downloading or serving those said clips would not be in question, there are plenty of places that already do it. The legality would then come into play with what the person did with the clips, rather than the downloading itself being illegal.

              Were it the case that people w

        • The point of Fair Use is to allow a work to be discussed or referenced without obtaining permission, as long as it is done in a way that does not diminish the value of the original work.

          Hence a thumbnail hints at what the whole picture looks like, and might even inspire you to buy the full resolution picture. A 30 second clip gives you a sense of the song, without giving the song away.

          But it is not a right to steal by downsampling or slicing into pieces which gasp can be put back together again.

          Fa

      • in-store CD players? (Score:4, Interesting)

        by commodoresloat (172735) on Monday July 07, 2003 @07:08PM (#6386963)
        What's the legality of in-store CD players for sampling music you're about to purchase? When Tower Records has a bunch of "Listening stations" throughout the store do they have to pay for a license to let people listen to CDs on them?
      • The wisdom in the business is that 30 second clips (this is the magic number for some reason) are perfectly legal to allow people to access without payment.

        Good thinking... I'm going to immediately go register FirstThirtySeconds.com, SecondThirtySeconds.com, ThirdThirtySeconds.com, etc, etc... Then someone from Estonia will write a program to recompile these clips.
    • Wait a second. (Score:2, Interesting)

      by caseydk (203763)

      note that the 9th Circuit Court is THE most overturned court in the country...

      it's always something like "not following established laws..." or something along those lines
      • Re:Wait a second. (Score:3, Interesting)

        by petecarlson (457202)
        This is the first and perhaps the last time I will complain about moderation but...
        WHAT? how is this a troll? The 9th circuit ruled in this case. The 9th circuit IS the most overturned court in the country. Informative perhaps?
    • Re:Good (Score:4, Insightful)

      by Drakonian (518722) on Monday July 07, 2003 @06:52PM (#6386845) Homepage
      An interesting point. What do you consider to be a thumbnail? 10% of the original image? In terms of raw bits, MP3s throw out probably 90% of the data. Hence their popularity.
    • Hopefully the RIAA wont object to me distributing thumbnails of music as MP3's

      I agree completely, who called this funny ? The Thumbnails in question were not just images of a small part of the picture, they were images of the entire picture, but at a smaller size, and so obviously at a lower quality (lower resolution). Although the RIAA likes to promote the lie that an MP3 is as good as an original recording because it serves their purpose, this just isn't true. An MP3 is lower quality (even when you've

      • Re:Good (Score:3, Informative)

        by Anonymous Coward
        For the billionth time:

        1. The iTunes store sells AACs, not MP3s.
        2. While songs may be 99 cents each, albums are nearly always $9.99, even if they contain 18 tracks.
    • Re:Good (Score:3, Funny)

      by JebusIsLord (566856)
      It's true though! If copyrighted images, lossily compressed and shrunk for viewing online, are legal... ...shouldn't music files, lossily compressed, also be legal? Or is it the magnitude of compression they are refering to? I suppose a 1024x768 jpeg of someone's artwork isn't covered...
  • by Razor Blades are Not (636247) on Monday July 07, 2003 @06:09PM (#6386479)

    Leslie Kelly.
    Poor guy. He's got *two* girls names.

    Makes that poor schmuck Sue sound lucky.
  • by hashish (62254) on Monday July 07, 2003 @06:09PM (#6386484)
    When it is a thumbnail :O
    • by spazoid12 (525450) on Monday July 07, 2003 @06:12PM (#6386494)
      Good question. All the copyright images that I use on my site are shrunk 99% of their original size before uploading...because I lawfully only publish thumbnails.
      • So... a thumbnail's worth 10 words?
      • and what kind of site would that be? pictures of naked seals or something?
      • by spazoid12 (525450) on Monday July 07, 2003 @06:15PM (#6386541)
        Without reading the article / ruling / whatever (I'm lazy today)... what makes a thumbnail OK?

        Is it because it presents significantly less information than the original?

        What if it remained the original's size, but was B&W instead of color?
        What if it were saved as JPEG quality 2 instead of the original?
        What if the court stated some metric? Like "must be at least 50% less than the original"... how about cutting the image in halves. Then posting both halves on your site such that they appear as one? Neither half violates individually?
        • by TrekkieGod (627867) on Monday July 07, 2003 @06:20PM (#6386589) Homepage Journal
          What if the court stated some metric? Like "must be at least 50% less than the original"... how about cutting the image in halves. Then posting both halves on your site such that they appear as one? Neither half violates individually?

          That wasn't an issue even when fair use was an unquestioned law. If you were to reproduce an entire short story in the form of 2 line quotes, no one in their right mind would believe you're not violating the copyright.

          I think you're right in the sense that a "thumbnail" is arbitrary, but I think that if the court did state some metrics, the problem would be pretty much solved. At least when it comes to pictures.

          • No it wouldn't. Because as technology evolves, new issues would arise.

            "Your honor, my client's images were thumbnails were within the 10% of original size metric as stated in the precedent."

            "Yes, but you did so by using a different compression algorithm."

            "So what?"

            and so on...
            • Err...of course a metric by file size wouldn't work. But regardless of what compression algorithm you use, 10% of the original resolution won't be fully restored. Even if you're algorithm if fully lossless, if you decrease the resolution, you won't be able to get the full resolution information back.
        • by timeOday (582209) on Monday July 07, 2003 @07:04PM (#6386925)
          Then again, it's equally easy to get silly in the other direction...
          • "You're violating our trademark because the guy in the background of your picture is drinking a Coke emblazoned with our logo and a picture of our logo is still our logo"
          • "You're stealing our intellectual property because your character looks too much like Mickey Mouse"
          • "We're gonna sue because that bass drum might have been sampled from us"
          Some people act as if slippery slopes can be avoided, but they cannot.
        • by IntelliTubbie (29947) on Monday July 07, 2003 @07:31PM (#6387120)
          What if the court stated some metric? Like "must be at least 50% less than the original"... how about cutting the image in halves. Then posting both halves on your site such that they appear as one? Neither half violates individually?

          Just to be safe, I cut the picture up into individual pixels and then reassemble them into a single new image. And you can't own a single pixel ... why, that would be tantamount to owning a color. And what kind of twisted company [pepsi.com] would try to trademark a color [adbusters.org]?

          Cheers,
          IT
        • by reallocate (142797) on Monday July 07, 2003 @07:54PM (#6387235)
          The courts have traditionally considered the impact on the potential market or value of the original when determining if a copy is fair use. In this case, the use of thumbnails isn't likely to reduce the value or market potential of Mr. Kelly's photos. (Enhance the market potential, if anything.)

          So, if all other points are moot, if someone convinces a court that thumbnails hurt his sales (or that music snippets hurt their CD sales), the court could consistently rule that it isn't fair use.
      • 1 distribute "thumbnailed" music under fair use
        2 ??
        3 profit (as defined by the RIAA, profit by not having lost the money you WOULD have spent on that $15 cd right?)

        fuck the riaa today

  • This should apply to other similar types of fair use -- for example, allowing snippets of reduced-rate MP3's on an online music store, or expanding Amazon's practice of sample pages -- as well.
  • by immanis (557955) <.moc.htogfs. .ta. .sinammi.> on Monday July 07, 2003 @06:10PM (#6386486) Homepage Journal

    Does this mean that I can legally share very small versions of pop songs? Like maybe, half a verse and the chorus?

    Or does it mean I can legally share the same songs if the volume is very low?

    Inquiring minds want to know!

    • by (54)T-Dub (642521) * <tpaine@NOspAM.gmail.com> on Monday July 07, 2003 @06:13PM (#6386506) Journal
      I believe this is already the case. I believe that artists/radio stations can use samples (shorter than 30 seconds i think) without having to pay for them.
      • by retto (668183)
        If it is applied to music, wouldn't a ringtone for a call phone be considered a thumbnail? Both are smaller and have fewer details than the original source.
      • I believe this is already the case. I believe that artists/radio stations can use samples (shorter than 30 seconds i think) without having to pay for them.

        What if the song itself is shorter than 30 seconds?
        • by Surak (18578) *
          I'm guessing standard fair use principles apply here. Just like you can quote a few lines from a source for a research paper, if the thing is only a few lines you still can't incorporate the *entire* work, so you can only incorporate whatever percentage is considered 'fair use'. Of coruse, the shorter you go on a work, the less chance that it qualifies as being "sufficiently original" for copyright protection.

          A song that was really really short (like a few notes) would probably fail the originality test.
      • In 1991's Biz Markie vs. Gilbert O'Sullivan [google.com] debacle, Markie lost his case and O'Sullivan was awarded punitive damages.

        In the United States, any sampling is considered a violation of copyright. [music-law.com]
        • I've seen this several times, and based on court cases it seems this is true: any sampling is a copyright violation. But why is that so? Why isn't excerpting a 5-second portion of a song fair use, just like excerpting a 1-paragraph portion of a book is?
      • So the stage for next-generation P2P is already set. Each server only distributes a randomly chosen snippet of a song, cut at defined intervals (the first 30 seconds, the second 30 seconds, etc.). To download a full copy, you need to get all the pieces from different servers. If the piece size is not too small, and there is enough redundancy in the system, this might work without problems.

        Of course, as soon as this started working, they would try and rewrite the laws to forbid it. And on to the next i

      • by the-build-chicken (644253) on Monday July 07, 2003 @08:28PM (#6387469)
        which begs the question...what if I had a program that distributed not mp3s...but small 30 second samples...and you p2p-ed that, so that the three minute song was distributed over 6 servers, each serving a 'snapshot'....and the downloader had to reassemble them after downloading (which you could no doubt get software for)...would that be legal?
    • No it just means you must supply a thumbnail of the cover for the album you are sharing and you can do as you please.., no wait thats not it..
    • It means blink 182 songs are all free...
    • Yes, it means you can distribute chipmunk versions of popular songs.
  • by rekkanoryo (676146) <rekkanoryo AT rekkanoryo DOT org> on Monday July 07, 2003 @06:13PM (#6386507) Homepage
    This is an interesting ruling, but I think the fact that it's not "binding precedent," as the teaser called it, could be a problem. If a higher court overturns this ruling then it's a huge hit to those who need or take advantage of the "Fair Use" exemptions in copyright law. As it stands now though it's a victory for the fair use camp.
    • by Anonymous Coward
      I think the commentator who thought this wasn't binding precedent is probably incorrect - unless the U.S. Supreme Court chooses to review it. The snippet seems to be referring to the court's note regarding the "slip opinion." Because the current opinion was "for publication" it looks to me like this is now the court's official position on the case, and supercedes the earlier slip opinion. It is the slip opinion that is not citable, not the ruling Slashdot linked to. IANAL. Maybe a real lawyer can tell us
    • by djembe2k (604598) on Monday July 07, 2003 @06:38PM (#6386743)
      IANAL, yadda, but . . .

      There's some confusion here -- let's separate "binding" from "precent". Anything can be a precedent. Binding is another matter.

      Circuit courts are a strange system. Each of the circuits covers several states. What a particular circuit rules is always binding in that circuit. By "binding", this means that lower courts (namely, federal district courts) should consider that ruling the "law of the land" when they make their decisions.

      What this means is that the law of the land in one circuit (and therefore in one state) may different from that in another. A law found constitutional in one state may be unconstitutional in another. Only the Supreme Court can resolve these differences, and although the S.C. turns down far more cases than it hears, it almost never turns down a case that will resolve a conflict among circuits. And of course, rulings by the S.C. are always binding on all federal courts.

      The "only a three judge panel" part is confusing. Usually, when a case is heard in Circuit Court, three judges (from the 10 or 15 or so in that circuit) will hear the case, and the "best out of three" wins. In some rare cases, the entire circuit will sit "in panel" to hear a case -- often if they want to review the finding of a three judge panel that seems out of whack. This is rare. But when the Circuit speaks as a whole in this way, that precent takes precedence over any previous three-panel decision in the circuit in the same case.

      As I said, three judge panels are the norm. Their findings are perfect "binding" within the circuit.

      Anybody who actually is a lawyer (or just knows better) can feel free to correct me -- I'm in a hurry and didn't have a chance to double-check the finer points, but in gross, this is how it works.


      • You are correct. This published decision is binding precedent within the Ninth Circuit unless and until: (a) the Ninth Circuit grants re-hearing en banc (at which time its precedential value is suspened pending the en banc decision); or (b) the U.S. Supreme Court grants review (at which time, again, its precedential value is suspended pending the decision of the Supreme Court.

        Ninth Circuit Rule 36-3 provides:

        CIRCUIT RULE 36-3

        CITATION OF UNPUBLISHED DISPOSITIONS OR ORDERS

        (a) Not Precedent: Unpublished

    • Keep in mind also that the 9th Circuit is THE most over-turned court in the country. They even overturned themselves once within minutes of a ruling.
  • And still todays panels of judges have no idea about technology at all.

    Not that I disagee, I'm just saying you can get a sense of the confusion.
    • Just because they have other things to do than sit around slashdot all day does not make their decisions any less informed. You don't need to know what Apache is to decide whether thumbnailing is fair use.
  • by ianmalcm (591345) on Monday July 07, 2003 @06:14PM (#6386523)
    So what actually constitutes as a thumbnail? A lower quality version of an original source? This could apply to music as well, since a low bitrate mp3 is a poorer quality version of the original raw cda. In terms of electronic use, all data comes down to 1s and 0s. Does this ruling apply to other forms of electronic duplication like music, or is imagery a whole different can?
    • The premise of the original Kelly decision was that a legal, fair-use thumbnail serves a different purpose than the original image. It supported reduced thumbs that only served to help the reader but came out against larger pictures that competed with the original artist. The judge explained, among other things, that scaled-down porn has content value, and is therefore less likely to be protected than similar non-porn reductions.

      An interview with the judge (Posner, IIRC) was linked here but I can't find it.

    • So what actually constitutes as a thumbnail? A lower quality version of an original source? This could apply to music as well, since a low bitrate mp3 is a poorer quality version of the original raw cda. In terms of electronic use, all data comes down to 1s and 0s. Does this ruling apply to other forms of electronic duplication like music, or is imagery a whol

      The issue is less what constitutes a thumbnail? than what are the circumstances in which it is used?. Fair-use allows exact copying within limits,

    • didn't you get the memo? the one that says that 'music industry 0000000wnzzz the music, there is no fair use.'

  • by ecalkin (468811) on Monday July 07, 2003 @06:15PM (#6386529)
    don't get your hopes up. the 9th circuit is the most often overturned court in the federal system. nothing is settled with this until the supreme court makes a case of it.

    eric
    • by Naum (166466) on Monday July 07, 2003 @07:19PM (#6387047) Homepage Journal
      the 9th circuit is the most often overturned court in the federal system.

      Chalk it up to the pervasive influence of the Moonie Times, Scaife funded foundations and Father Limbaugh ... proving that if something gets repeated enough, it is accepted as truth, despite facts to the contrary.

      From a NY Times response by Judge Noonan Jr. of the aforementioned 9th circuit - you'll probably have to pay to get the article but here is a blurb:

      "In the calendar year 2001, the Ninth Circuit terminated 10,372 cases, and was reversed in 14, with a correction rate of 1.35 per thousand. The Fourth Circuit, reputedly the most conservative circuit and the circuit with the second-largest number of cases reviewed by the Supreme Court, terminated 5,078 cases and was reversed in 7, making a correction rate of 1.38 per thousand."

      Of course, you're free to adhere to the Moonie Times myth that the 9th circuit court is some aberration of justice totally out of alignment with the rest of the world and other judicial bodies...

  • Corporate law (Score:3, Interesting)

    by TrekkieGod (627867) on Monday July 07, 2003 @06:15PM (#6386530) Homepage Journal
    Since the applicability of fair-use defenses to copyright infringement touches on all kinds of common uses of the Internet as well as rulemaking related to the scope of the DMCA, this decision will probably have an effect on the discussion.

    Yes, it does have an effect. The effect is that basically fair use applies to corporations, but not to the private citizens.

    When a private citizen sues a corporation for copyright infringement, it's fair use. When a corporation sues a private citizen, it's piracy.

  • So ... (Score:2, Interesting)

    by SvendTofte (686053)
    Would it be fair use to "thumbnail" a song, by using a low bitrate mp3 sampling?

    Just when is "thumbnailing" thumbnailing? What if I scale an image down 1%? 50%?

    While not binding, this is kinda interesting.
  • Google's Policy (Score:5, Informative)

    by heli0 (659560) on Monday July 07, 2003 @06:19PM (#6386579)
    Google will go a step further and remove the location of your image as well as the thumbnail of your image from their image search database if you request it. The email is dmca-images'AT'google'DOT'com

    Remove an image from Google's Image Search [google.com]

    I wonder if they will consider changing that policy now?
  • by graveyhead (210996) <fletch&fletchtronics,net> on Monday July 07, 2003 @06:19PM (#6386585)
    I said exactly this last time /. posted this story, and now I've actually automated similar systems, so I'll repeat it more loudly this time. OK Mr. Kelly, are you listening?

    watermark your images

    You can create yourself an action in Photoshop, or there's at least two very good free software packages that can do the same thing (Gimp and ImageMagick). If you don't want the whole world grabbing your images,

    don't publish them on the web

    at least, not without putting some kind of protection in front of them.

    There are well known solutions to this guys problem, and he choses the courts?! I guess that's really the American way :(
    • don't publish them on the web
      at least, not without putting some kind of protection in front of them.

      Siiiigh.

      There is no "protection" for images put on the web. There are various hackish ways to make it slightly more difficult, such as splitting the image and using a table to display it(but making copying any one piece hard)- easily defeated by simply taking a screenshot; same for Flash stuff. There are various javascripts that capture a click(or sometimes even the pointer crossing over the image!) to

      • Yes, I would say that.

        In our local Professional Photographers Association chapter there are many photographers who see no moral problem with copying MP3s (or, more often,Photoshop!) between themselves, yet scream with indignation when someone copies one of their images digitally from their own promotional website.

        What's sauce for the goose is sauce for the gander. The Internet will make your prices come down to the point that stealing your image is more trouble than paying you for it.
    • He is a photographer who presumably wants people to see and buy his photos. But he doesn't want a search engine to be able to find his photos. That's business genius for you.
  • Was this a website the author put his pictures on? Why didn't he control access? Sounds to me like he encouraged fair use.

    I couldn't read the pdf, so I didn't read the facts.
  • Courts (Score:5, Funny)

    by inertia@yahoo.com (156602) * on Monday July 07, 2003 @06:26PM (#6386648) Homepage Journal
    <fat_comic_book_guy_from_the_simpsons>
    Oh great. Another ruling from the most overturned appellate court ever.
    </fat_comic_book_guy_from_the_simpsons>
  • by greymond (539980) on Monday July 07, 2003 @06:31PM (#6386688) Homepage Journal
    ok heres my 2 and a half cents...

    When I was working at Kinkos we weren't allowed to make copies of pictures from books because the photographs in them were copyrighted. (now whether or not YOU went into a Kinkos and did this I don't care i'm just telling you a FACT as a ex-employee this is the LAW)

    However, there are exceptions to this. 1 if it is for Educational use and 2 anyone can make a copy of the image as long as it was at least 90% smaller or 110% larger than the original (somewhere around there it had to be smaller or larger basically.)

    Therefore it would make sense TO ME that if you are creating thumbnails of a copyrighted work AND linking to the original page or image then that should be allowed, since I would put them in the same category. (images and pictures that is.)
  • Dr Seuss! (Score:2, Funny)

    by robindmorris (682328)
    Any court ruling that footnotes Dr Seuss must be good! (see page 8 of the pdf document)
  • Thumbnails != art (Score:3, Insightful)

    by NetDanzr (619387) on Monday July 07, 2003 @06:36PM (#6386721)
    I would agree that using thumbnails falls under fair use, unlike using a lower-quality version of a song. Before I get into my argument, I'd like to point out that the following is just the way I feel about the issue, and not supported by any objective evidence.

    I see a difference between the original and artistic aspect when comparing music and picture. In the case of music, art is created by writing the melody and the lyrics. You cannot really degrade the quality of those two if you create an inferior copy. All you'd do is degrading the quality of the sound, but the music remains the same. Hell, you cannot even release the same song yourself without permission of the original writers.

    With pictures, the situation is different. Every photographer will tell you that while composition is extremely important, most of the work goes to achieve technological perfection. That's why photographers are able to take 50 or more pictures of the same composition - to achieve this perfection. However, that perfection is lost once you degrade the quality of the picture. What a thumbnail does is to get across the information of what you see. It fails, however, to get across the beauty of that particular composition.

    That's just my $0.02...

    • I think the equivalent of a "musical thumbnail" would be a snippit from that song ( 10 seconds or so). In that snippit, you get the feel of what the soung is about, it's general sound & riff, and it serves to entice the customer to want to check out the full version.
    • I see a difference between the original and artistic aspect when comparing music and picture. In the case of music, art is created by writing the melody and the lyrics. You cannot really degrade the quality of those two if you create an inferior copy.

      What about when you throw painting or sculpture into the mix? How do you go about copyrighting those? Is it the end result, or the process? If paint a painting, and someone else across the street is watching my every move, and duplicates the same brush stroke
      • Yeah, I was thinking of that, and can't make up my mind. Here's the few aspect to this issue that I could identify:

        * You create an exact copy of the work and try to sell it as an original. You go to jail.
        * You create an exact copy and try to sell it as a reprint. You need the permission of the owner.
        * You create a copy of the work that is much smaller, not revealing any small details and of a much lower quality. I don't know whether it's permissible or not, but the last time I was in the Metropolita

  • (Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)"

    What the hell does that mean? Either it was decided by an appeals court and is valid for precendent in that area or it wasn't decided.
  • The historically inclined might want to read Slashdot's previous coverage [slashdot.org] of a very similiar article.

    But... surprisingly... not identical :)
  • by zavyman (32136) on Monday July 07, 2003 @06:40PM (#6386757)
    (Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)

    False. I can't believe this is in the story header, it should be changed immediately. Appellate courts like the 9th Circuit generate binding precedent every time they publish an opinion (some other appellate courts also generate precedent through unpublished opinions).

    Sure, it's on the lowest rung of binding precedent. It can be overruled by an en banc panel, or it can be overruled by the US Supreme Court. But it's still certainly can be cited in other cases.

    Not to give any credibility to this site [wright.edu], but

    What Is Case Law?

    Case law refers to decisions in the various court systems which set precedent for future decisions and are therefore part of the common law.

    The effect of a court decision depends on the level of court at which a case was decided. A decision of an appellate court is binding precedent in all lower courts in its jurisdiction. A U.S. Supreme Court decision is binding precedent in all courts dealing with any aspect of federal law.


    We have to distinguish between published and unpublished opinions in some districts, but the point basically stands.
  • 3 Judge Panel (Score:5, Informative)

    by CaptainStormfield (444795) on Monday July 07, 2003 @06:40PM (#6386758)
    The submission incorrectly states that because this case was decided by a three-judge panel, it is not binding precedent. The U.S. Courts of Appeal typically hear cases in three judge panels. Very rarely, all of the judges in a particuar circuit court will hear a case "en banc." While the court sitting en banc can overturn a panel decision, the panel decision is binding precedent (whatever that means, especially in the murky area of fair use) unless and until it is overturned by 9th circiut sitting en banc, or by the U.S. Supreme Court. Of course, other Circuit Courts (e.g. the 10th circuit, the 6th Circuit, etc.) are not bound to follow precedents from their sister circuits, though they often do.

    IAAL, but this post is not intended to constitute legal advice. If you need advice, see your lawyer, not Slashdot.
    • by rjh (40933) <rjh@sixdemonbag.org> on Monday July 07, 2003 @07:06PM (#6386941)
      The poster's absolutely correct. With very few exceptions (like, say, Louisiana), every court decision creates binding precedent throughout its jurisdiction. A panel decision possesses almost as much precedential value as an en banc decision; the only difference is an en banc hearing can overturn a panel decision, while a panel decision cannot overturn an en banc decision.

      As a matter of practice, en bancs are almost superfluous. Looking at the statistics for the 8th Circuit Court of Appeals, they hand down unanimous panel decisions 97% of the time. This is for a court which is stocked almost straight 50/50 with appointees from hardcore Republicans and hardcore Democrats.

      Only 3% of the time is a panel decision split; and less than 10% of the split decisions are sufficiently "interesting" (in a legal sense of the word) to warrant an en banc hearing.

      If anyone's interested I can get statistics for the other circuits as well--I only know the 8th Circuit stats off the top of my head, though.

      IANAL.
      • A panel decision possesses almost as much precedential value as an en banc decision; the only difference is an en banc hearing can overturn a panel decision, while a panel decision cannot overturn an en banc decision.

        To be clear, a panel decision cannot be reversed by another panel decision. Thus, they can be very binding with no en banc panels to guide the way.
    • It is binding precedent, but only in states covered by the 9th Circuit. The 9th Circuit covers MT, ID, WA, OR, CA, NV, AZ, AK, and HI. Other states are covered by other circuits that may or may not have reached a decision on this issue.
  • by grolaw (670747) on Monday July 07, 2003 @06:44PM (#6386782) Journal
    Just so long as the 9th Circuit doesn't grant a rehearing en banc, this is a "binding precident" in the 9th Circuit.

    If the 9th does hear the case en banc (meaning at least 11 judges) and they uphold the decision then it is still binding precident in the 9th circuit.

    If the U.S. Supreme Court takes cert. on the case (which can happen if one of the parties petitions for a rehearing en banc and it is denied or they lose the rehearing and still have money to spend and petition the Supremes for Cert. and they grant cert.) and the Supremes uphold the fair use holding, THEN IT IS BINDING PRECIDENT IN EVERY CIRCUIT IN THE U.S.

    Only about as costly as a small war....

    In my last major appeal in the 8th Circuit the quoted cost was $30k for the trial transcript (from a 1 week long trial). The 8th Cir. granted IFP status to my client and we got a copy of the transcript free, but still had to copy, number and bind a copy for each judge and the opposing side (still about $3k at Kinkos (tm)).
  • Thumb Me (Score:3, Interesting)

    by Malicious (567158) on Monday July 07, 2003 @06:45PM (#6386786)
    So when I start using Thumbnails of Corporate Logo's and Trademarks, can I hide behind this firewall and plead fair use?
    • Trademarks and copywrights are entirely different things. Why do people perpetualy get them confused?

      On Slashdot it is a chronic problem. I often see nonsensical/stupid posts (like the parent) modded to +5.

      To set the record straight:
      (This is by no means an accurate leagal definition but you get the idea ...)

      TRADEMARK [trademark]. 1. A word, slogan, design, picture, or other symbol used to identify and distinguish goods. 2. Any identifying symbol, including a word, design, or shape of a product or conta
  • by Nom du Keyboard (633989) on Monday July 07, 2003 @06:45PM (#6386791)
    How long before partially-sighted people start complaining that thumbnails discriminate against them and demand full-size images? Will the court protect that under the Americans With Disabilities Act?

    In short, how many of our laws affect out other laws in unforseen ways?

    • by yerricde (125198)

      How long before partially-sighted people start complaining that thumbnails discriminate against them and demand full-size images? Will the court protect that under the Americans With Disabilities Act?

      No. Assistive technologies are commonplace that magnify the thumbnail but still do not produce an image that can reasonably substitute for what the photographer is trying to sell.

  • The decision is binding precedent in the 9th Circuit (many Western states, including California), unless more judges, or the Supreme Court, get together to overrule it.

    See Roundy v. Commissioner, 122 F.3d 835, 837 (9th Cir. 1997) ("A three-judge panel is bound by a prior judgment of this court unless the case is taken en banc and the prior decision is overruled.")

    (IAAL, but - disclaimer oblige - this is not legal advice)

  • So... does that mean a bunch of different people could put up 'thumbnail segments' of mp3s and you just need to collect the right files to play the whole song?

    Heh I'm only being half-sarcastic here.
  • Yeah but what about thumbnails of thumbnails? Is that ok to do as well? I gots to know!
  • by jpnews (647965) on Monday July 07, 2003 @07:15PM (#6387008)
    What if I have large size photos on the web, as well as thumbnail photos of the same images. Assume that under each photo (of both sizes) is a notice of copyright. Doesn't that claim apply to the thumbnail?

    Then, if a search engine makes a similar thumbnail, I can sue over a breach of the thumbnails' copyright.

    Surely the court hasn't ruled that I cannot copyright my thumbnail images?!
    • by Anonymous Coward
      You don't understand "fair use". The court did not rule that the plaintiff didn't have the copyright on his photos -- it ruled that the defendant was not liable for copyright infringement because it was making "fair use" of plainitff's copyrighted images. So, in your hypothetical, you could sue any search engine you want for copyright infringement if you found that it was thumbnailing your thumbnailed images, but, at least in the Ninth Circuit, the "fair use" defense would trump your infringment claim. A
  • if you get down to page 12, you see that the court's opinion was based not only on the degradation in quality but on two other factors: the 'transformation in use' in that Kelly's work was for aesthetic value and Arriba's infringement was for informational value; and that Arriba's infringement was not competitive with the market for Kelly's product. it would seem that neither of these factors is present in mp3s of lower quality, and yet both are present in 30s clips of music, thus meshing well with law in those areas.
  • by Enonu (129798) on Monday July 07, 2003 @07:45PM (#6387187)
    When an image is put on the web, does that mean that the image must always be presented in the same context that the author intended?

    In other words, what's the definitive answer to the following questions (references appreciated):

    1. If I have a web page that displays an image via URL poiting back the original source of the image, is that fair-use since I have not actually copied the image, but rather referenced to it?

    2. If I have a program that displays an image downloaded via URL pointing back to the original source, is that fair-use for the same above reason?

    3 & 4. The same questions as the above, but add caching to improve performance.

    5. If the any of the above has been answered no, then suppose the following: Mozilla has a feature where you can right-click on an image, select "View-Image", and then view the image alone with out its surrounding context. Mozilla has also most likely cached the image. Is this legal?
  • by InklingBooks (687623) on Monday July 07, 2003 @08:22PM (#6387423)
    I'm not a lawyer, but I just completed a copyright dispute with the JRR Tolkien estate that lasted for over a year and Kelly v. Aribba Soft was a major part of my defense and perhaps one reason why the Tolkien estate was willing to settle out of court and not contest the publication of my soon-out chronology of The Lord of the Rings, presently entitled Untangling Tolkien. It may also be why the judge in the case dismissed their lawsuit "with prejudice" back in January of this year. "With prejudice" is a judge's way of saying, "don't ever bother me with this case again."

    First, the July 7, 2003 decision IS precedent and can be cited. What is no longer precedent is their Feb. 6, 2002 decision. A lawyer in the know would have to tell you why, but my guess is that some technical glitch allowed Kelly, the plaintiff in the case, to ask for a "rehearing en banc." By withdrawing and refiling what seems to be the same decision, the appeals court created their own technicality that allowed them to rule Kelly's petition moot. Law is full of those sorts of games.

    The decision mattered in my case because I'm in Seattle, which in 9th Circuit and a 9th Circuit Appeals decision like this one has the force of law at the district court level where I was fighting. If I could show a great deal of relevance between "fair use" in that case and my appeal to fair use, my defense would be on very solid ground.

    That mattered because the Tolkien estate's case was built on a series of 1998 decisions in the 2nd Circuit (New York), the most important of those cases being Castle Rock, a decision that found a book of Seinfeld trivia called the Seinfeld Aptitude Text as an infringing derivative.

    The court's rationale was that a fictional author creates an entire world and any use of that, whether in a trivia book or some sort of viewer's guide was infringement. The decision was much criticized in legal journals, no other circuit has followed it, and, to my knowledge, tthe 2nd Circuit hasn't repeated it. You can go to:

    http://chillingeffects.org/

    for a discussion of the effect that has had on Internet fan fiction. It has also made if VERY RISKY to do guide books to popular movies, TV shows or, by extension, popular works of fiction like Lord of the Rings. Books that help readers understand fictional works, rather than make academic literary comments on them, are at risk until the Castle Rock decision is buried.

    My defense was that online art (as in Kelly v. Arriba) is a form of fiction and my bullet-list summaries of what happened each day the equivalent of thumbnails. Settling out of court, we will never know if the judge would have bought that argument. But I did have a lawyer tell me that if I'd won on it at the district and appeals level, the case would have headed for the Supreme Court, since the 2nd and 9th circuits would have been in conflict. Since that would have taken years, I was better off settling out of court.

    This decision applies to music in a roughly similar fashion. The Castle Rock decision virtually eliminated a whole spectrum of what would otherwise be fair use categories simply because the work was art/fiction rather than fact/biography/history. It would be very easy to slip music into art, making even brief excerpts, perhaps in an Internet radio show, illegal.

    The Kelly v. Arriba decision has two key factors. First, when the reduction is great enough (i.e. a picture is reduced to a thumbnail) the original purpose of the art is no longer being served, so the thumbnail is not infringing.

    The second factor is that the thumbnail is part of something (i.e. an image database) that is serving a different purpose, in this case, indexing internet images. If that purpose has public value, then it is fair use and protected from charges of infringement. Think, for example, of a book that gives the basic plot of movies or an audio database that has short (stressing short) samples of music, indexed perhaps by artist, gendre, theme, etc.

    That's w

  • by AyeRoxor! (471669) on Monday July 07, 2003 @08:40PM (#6387558) Journal
    A thumbnail is a reduced-resolution replication of an entire copyrighted piece of work, and has just been called a legal representation of what one can obtain if one purchases the full-resolution version. How much reduction must take place for this to be legal?

    I don't see how MP3s don't fall under this same definition. The only question is what is the max resolution/bitrate of MP3s before they're no longer audio thumbnails?

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