9th Circuit Court Finds 'Thumbnailing' Fair Use 266
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."
what constitutes as thumb (Score:5, Interesting)
Corporate law (Score:3, Interesting)
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.
Re:When is a picture not a picture? (Score:5, Interesting)
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?
So ... (Score:2, Interesting)
Just when is "thumbnailing" thumbnailing? What if I scale an image down 1%? 50%?
While not binding, this is kinda interesting.
Re:Applying the same logic (Score:2, Interesting)
Re:Applying the same logic (Score:2, Interesting)
Of course, as soon as this started working, they would try and rewrite the laws to forbid it. And on to the next iteration...
Re:Good (Score:5, Interesting)
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.
Thumb Me (Score:3, Interesting)
Thumbnails discriminate against partially-sighted (Score:5, Interesting)
In short, how many of our laws affect out other laws in unforseen ways?
Wait a second. (Score:2, Interesting)
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
in-store CD players? (Score:4, Interesting)
what if I make my own? (Score:3, Interesting)
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?!
Don't Get Excited (Score:4, Interesting)
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.
Re:...and you're not all that sharp either (Score:2, Interesting)
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.
Image Fair-Use Questions (Score:4, Interesting)
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?
Significance of Ariba decision (Score:5, Interesting)
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
What does this mean to MP3s? (Score:4, Interesting)
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?
Re:Wait a second. (Score:3, Interesting)
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?
Almost there, let's take it a step further... (Score:1, Interesting)
Not that this is in any way a ruling that will have an effect on music... besides the fact that the ruling doesn't set a binding precadent; but hey, we can dream can't we? Or is it also copyright infringement if you happen to hear their music in your dreams?