9th Circuit Court Finds 'Thumbnailing' Fair Use

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."

Other aspect of "Thumbnailing"

[melete]

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.

Re:When is a picture not a picture?

[spazoid12]

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.

Interesting ruling...

[rekkanoryo]

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.

Leslie Kelly is an IDIOT

[graveyhead]

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 :(

Re:When is a picture not a picture?

[TrekkieGod]

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.

Re:Interesting ruling...

[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 what the precedential value of this decision is.

Re:Leslie Kelly is an IDIOT

[Honest Man]

While I agree with you. Look how much more attention and publicity he's received this way.

Thumbnails != art

[NetDanzr]

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...

Re:Applying the same logic

[Surak]

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.

Slashdot is not the place for legal advice

[zavyman]

(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.

Re:Good

[Drakonian]

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.

Re:Good

[Anonymous Coward]

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:When is a picture not a picture?

[timeOday]

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.

It is precedent in the 9th Circuit

[David Hume]

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 dispositions and orders of this Court are notbinding precedent, except when relevant under the doctrine of law of thecase, res judicata, and collateral estoppel.

(b) Citation: Unpublished dispositions and order of this Court may not be citedto or by the courts of this circuit, except in the following circumstances.

(i) They may be cited to this Court or to or by any other court in thiscircuit when relevant under the doctrine of law of the case, res-judicata, or collateral estoppel.

(ii) They may be cited to this Court or by any other courts in this circuitfor factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the existence of arelated case.

(iii) They may be cited to this Court in a request to publish a dispositionor order made pursuant to Circuit Rule 36-4, or in a petition for panelrehearing or rehearing en banc, in order to demonstrate the existenceof a conflict among opinions, dispositions, or orders.

(c) Attach Copy: A copy of any cited unpublished disposition or order must beattached to the document in which it is cited, as an appendix.

(New Rule 7/1/2000)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 36-3

Please note that Circuit Rule 36-3 has been adopted for another limited 30-month period, beginning January 1, 2003 and ending July 1, 2005. (Rev. 01-01-2003)

(emphasis added)

See http://www.ca9.uscourts.gov/ca9/Documents.nsf/8e0e 7f41ebb23094882567f50054bd5f/ac2beed98709009188256 ca60054aa77/$FILE/0103_chngs.PDF

You are also correct that the fact that it was decided by a three judge panel does not make any difference. The vast majority of precedential Ninth Circuit published opinions are decided by three judge panels.

Re:Applying the same logic

[the-build-chicken]

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?

Re:What does this mean to MP3s?

[Brad Mace]

The court did not legalize copying MP3's. Not even low quality ones The important factors in reduction are that it has a purpose (such as indexing) that is different than the original, and so does not compete with the market for the original. If you think this ruling says you can get something for free, you're not interpreting it correctly. It protects fair use, not free use.

Fair Use dependent on intent (surprise)

[cait56]

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.

Fair Use has an important role in the exchange of information. Don't muddy it up as some flimsy excuse for theft.