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The Courts Government News Your Rights Online

9th Circuit: Thumbnails Are Big Enough For Fair Use 456

An anonymous reader submits: "According to an article from law.com, yesterday's decision by the 9th Circuit Court of Appeals (U.S.) will have far-reaching effects on web publishing. From the article: '... The court found that reproducing photographs to create thumbnail images is a fair use of the material, but displaying full-sized images violates the copyright owner's exclusive right to publicly display his works....But the court found that displaying the full-sized images through linking and framing was not transformative and harmed the market for the original photographs.' One lawyer is quoted as saying, 'It's basically going to do away with linking or framing without permission.'"
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9th Circuit: Thumbnails Are Big Enough For Fair Use

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  • What penalties can be enforced for a violation?
    • Doesn't say and IANAL but I believe this would allow them to sue you to remove them (I.E. copyright violation) and hold you liable for damages.

      Which makes you wonder just how many people are going to file lawsuits against Google soon. Too bad I really loved their image search.
  • by RumGunner ( 457733 ) on Thursday February 07, 2002 @11:57PM (#2972173) Homepage
    All is for naught unless adequate enforcement is supplied. So far, all we have is the option to sue over copyright infringement.
  • In other words (Score:5, Insightful)

    by Restil ( 31903 ) on Thursday February 07, 2002 @11:58PM (#2972180) Homepage
    I have an image on my site, and someone does a direct link to it, to display it on their site...

    and therefore drains my bandwidth....

    and deprives me of any ad revenue or anything else as a result....

    I have to provide permission first.

    Hmmm... is there a problem here?

    Note, this doesnt' stop someone from creating a thumbnail and using it to link to my site... where someone can see the whole image.

    -Restil
    • by alecto ( 42429 ) on Friday February 08, 2002 @12:07AM (#2972226) Homepage
      Yes. There is a problem. You made the image available with an openly specified protocol, on a public network, for anyone to access. If you don't want to make it available that way, that's your choice--and it's just plain absurd to whine that people dare to actually use the methods in place to see that image!

      If you want to use countermeasures, such as checking HTTP_REFERER, hacking your web server to verify that a banner ad loaded first, etc., that's your right, but it might just drive the people you want away from your site.

      If you want to make it available that way, and complain when people "cheat" you or "steal" from you by "directly" linking to your image, that's also your right, but it's not going to accomplish anything terribly useful. If it's on the web, and it's anything anyone gives a darn about, it's going to be looked at, captured, stored, manipulated, and shared. I miss the days when more people thought that was a good thing than not.

      • You are right. For instance, you have a front door that is widely left unlocked because it's an open standard and I can easily just learn how to unlock it. So if I want to use your couch in my living room, and you don't like it then it's just absurd to whine that people dare actually use locks to protect their belongings.

        The whole thing is a sense of ownership, and at the moment dignity and trust to not just steal other peoples work. And don't give me the "it's just digital, I'm not costing him any money" argument, because you are. Hosting costs money. Bandwidth costs money.

        If you think you can violate copyrights just because it's put on the web, I have a clue-by-four I'd like you to meet.
        • Re:In other words (Score:5, Insightful)

          by the_2nd_coming ( 444906 ) on Friday February 08, 2002 @12:32AM (#2972333) Homepage
          a better analogy would be:

          you put a poster of a painting you did up to advertize your exibit at the musium.......some person comes along, whips out his industrial imaging copier to digitize the poster as good as possable, he puts the poster back, and a week later he is using it to promote his [enter project here]. by putting the poster up, you should have to deal with folks taking a picture of it with their cameras, but to take your poster, copy it then use the exact copy to promote whatever it is I am doing is Copyright violation. even though I put it out in full access of the general public.

          I however do think it would be nice if folks would just lighten up and only get pissy if they are not sighted as the creater of the work (when there is no wide spread distrobution with no compenation going on)
        • Re:In other words (Score:4, Insightful)

          by acceleriter ( 231439 ) on Friday February 08, 2002 @12:36AM (#2972349)
          Holy shit! You're saying that putting a document on the Internet is no more giving permission to access it than leaving your door unlocked? My god, what a filthy thief I am for loading all those web pages over the years!!! Lock me up and throw away the key! (That was sarcasm: putting your documents/pictures/songs/poems on the web grants permission for their public access, unless you acutally use a lock, like, say, http basic authentication).

          Tired comparisons to stealing your couch don't make the link correct. While it might not be terribly courteous to spider someone's webspace or link into it, it's a hazard of putting your stuff on the web. Copyright is nice and all, but without enforcement, it means bupkus. And unless you're http://riaa.org [slashdot.org], you won't be getting any of that.

          Executive summary: if you don't want people to look at it except on your terms, publish a book, not a web site.
          • My argument and all of it's stupidness were meant to invalidate the parents stupidness. It was purposefully meant to be like that, unfortunately the point was seemingly to be missed.

            The issue at hand is not as to whether or not you want people to access it. The question is whether or not I want people to rip me off. Obviously, the answer is no.

            The whole problem with this is that morality and integrity, and general accountability has gone out the window and replace with this "But I can do it so easy on the internet it can't be wrong!" mentality.
        • Re:In other words (Score:4, Insightful)

          by Eccles ( 932 ) on Friday February 08, 2002 @11:16AM (#2974150) Journal
          You are right. For instance, you have a front door that is widely left unlocked because it's an open standard and I can easily just learn how to unlock it.

          Nonsense analogy.

          What makes index.htm magic? Or what permits me to visit www.nerdfarm.org? I didn't get your explicit permission to view it. Do I need it? It's agreed that no, by setting up something that will respond to my request, you have implicitly given me and everyone else permission to view it.

          So why is www.nerdfarm.org/fatdrunkandstupid.jpg magically different? You've put it up there in directly accessible form. Don't want me to get it? Indicate that through the accepted protocol of HTTP_REFERRER; if I forge that, I'm misrepresenting myself, and that way lies fraud. Likewise, don't want spiders? Create a robot.txt file. If I spider you anyway, you've revoked the implicit yes for spiders, so by ignoring it I'm in the wrong.

          But the default for web content is you can get what you can URL. Given that there are ways to indicate that you don't want that default, that's what should be done -- not a change to that default assumption.
      • Re:In other words (Score:4, Insightful)

        by MaxVlast ( 103795 ) <maxim.sla@to> on Friday February 08, 2002 @12:30AM (#2972326) Homepage
        Not at all. Books in libraries are available with an openly specified protocol, in a public place, for anyone to access. They even provide photocopiers. If I go and photocopy the latest John Grisham novel and put it in my library, you bet I'm risking trouble.
        • If I go and photocopy the latest John Grisham novel and put it in my library, you bet I'm risking trouble.

          Dude, if someone is dumb enough to go to the trouble of photocopying an entire John Grisham novel, they've already got trouble. Double that for anything by Tom Clancy. Do these guys get paid by the pound, or what?

      • My feelings:

        loading an image from someone else's site on your website w/o permission: bad
        linking an exteral image w/o permission: fine

        everything else can be derived from here.
      • Re:In other words (Score:3, Interesting)

        by Zoop ( 59907 )
        I see no difference between this and the argument of spammers that you want spam by having an e-mail address. If it doesn't matter to you that the costs are borne by other people, and that using a technology in one way grantsd permission to use it in every way, then you have no problem with spam.

        After all, you put your e-mail address, an openly specified protocol, on a public network, for anyone to access. It's just plain absurd to whine that people dare to actually use the methods in place to send you commercial e-mail.

        I'm sure the Direct Marketing Association is glad to hear that you've opted in to their grand sche^H^H^H^Hpla^H^H^Hopportunity.
      • Re:In other words (Score:3, Insightful)

        by Jobe_br ( 27348 )

        Precisely. I totally agree with alecto. I am usually in favor of protecting copyright and the like, but this goes too far. You have posted your images on the Internet. Not in a magazine, not at a gallery, not in a museum. The Internet ! If you don't like what the Internet is (a shared medium) then don't put your pictures there! Nobody is forcing you to put your pictures there, if they're proprietary or important to you in some other way, password protect your site - a .htaccess file in the images directory will work just fine.

        This ruling is absolutely ridiculous and I so very much hope that the EFF takes issue with this ... in a big way. I'll be writing my check out next payday ...

    • I have an image on my site, and someone does a direct link to it, to display it on their site...and therefore drains my bandwidth....and deprives me of any ad revenue or anything else as a result....

      I hate to break it to you, but the only places making money on the Web are porn sites. Advertising banners are about as useful as window screens on a submarine.
    • Re:In other words (Score:2, Interesting)

      by matthewn ( 91381 )
      Right. But someone's confused, and perhaps it's me: The article seems to indicate that the practice over at Google Image Search [google.com] -- thumbnails with links to original images at original sites -- is fine. Then how can the lawyer at the end of the article say they're "basically going to do away with linking or framing without permission"? Is it the framing (which Google does) that's the problem? If so, the article doesn't make that clear. Time to do some homework and read the court decision, I guess...
      • Re:In other words (Score:5, Insightful)

        by thing12 ( 45050 ) on Friday February 08, 2002 @01:06AM (#2972466) Homepage
        No, the problem was that Ditto/Arriba used to link the full size image inline (they don't anymore). So other than the link below it you didn't have the original context. There's nothing wrong with the way google is doing things (framing the entire page with the image in context). The courts are simply saying that it's wrong to inline images from other servers without permission.

        Looking at it in a broader context - lets say that in a few years the whole web has moved to XML with Stylesheets to format it. And some popular news site, lets say CNN.com, has a /news.xml on its server which they would normally display to the end users with their /news.xsl stylesheet. So I decide that I like their news data, and I want to make a search engine to help people find news from all sorts of sites - theirs in particular. To help people find things easier (and of course to force them to stay on my site since eyeballs==$$$) I decide that while I'll give a link to the source, I'll at the same time take that XML content and use my own stylesheet to reformat it for display inline in my site. The browser is still retrieving the XML file from CNN.com's server, and all I'm doing is overriding the appearance of it for display in my site. Is that fair use?

        I can't imagine anyone who understands the issue thinking that it's fair use. Deep linking is not theft, but inlining other people's content is. Plain and simple.

      • Re:In other words (Score:5, Informative)

        by Twylite ( 234238 ) <twylite&crypt,co,za> on Friday February 08, 2002 @02:34AM (#2972778) Homepage

        It would seem that the terminology being used is somewhat confusing. "Linking" appears to indicate a direct URL reference in (say) an IMG tag, rather than a "link to a page" (A tag).

        Essentially there is no problem with providing a link to the original page, where the image will be displayed in context, but pulling the full image out of context is an issue.

        From previous legal challanges and discussions, it would seem that "framing" is much less clearly defined. Providing a banner which indicates that you are supplying content as a proxy (or similar circumstance) appears to be okay, but having a site embed content from another site (say in another frame) where there is no indication that the content is not yours, would be considered framing.

        This tends to happen most often when the site with the content has frames, and you have frames (in both cases, HTML frames), and you can link directly to one of their frames without the rest being displayed.

    • by phr2 ( 545169 ) on Friday February 08, 2002 @12:35AM (#2972348)
      If you think there should be laws against anything that you don't make money from, your vision of society is messed up. The idea that publishing someone else's URL (whether to a whole web site or to an individual image on the site) is somehow equal to copying the URL's contents is ridiculous.

      If you don't want other people transcluding your images, just set up your server to not serve the images unless the referer header points back at your site. Don't go whining to the government just because you don't know how to set up a web server to check a referer header. Read the server documentation instead.

    • You could always provide permission for anyone to use your images for whatever uses you'd like. Just put up a notice on your site.

      ,br>
  • by statusbar ( 314703 ) <jeffk@statusbar.com> on Thursday February 07, 2002 @11:59PM (#2972185) Homepage Journal
    Do they measure it in pixels or inches/

    --Jeff
  • ...thumbnails are small enough to constitute fair use? I believe that's effectively what the court ruled.
    • I believe "big enough" means "as big as you will be allowed"...

      as in, "big enough for fair use purposes".

      Personally, I think it's bullshit.
      It's not like copyright laws stop anybody anyway.
  • Let's all have a memorial for a free internet. If linking to images on larger, more economically enabled site, can open yourself up to be sued for copyright violation ... i think many of the independent news and entertainment sites will have to re-evaluate how they run their sites. If you are only able to refer people to a story at, say, msn.com (but why? - let's eschew logic for the time being), you'd have to refer them to the portal site and not directly to the image or article in question? That seems to be counter-productive and more in the interests of the orginating site's ADVERTISERS.

    but to be honest, i never really expected any less to happen ;)
    • Not exactly.

      There's nothing in the ruling about linking to an article. You can also still post a thumbnail as a link.

      Those independent news sites can still post links to other sites, but don't get to steal their bandwidth. Personally I appreciate sites that are largely text based - they generally have something worthwhile to READ.
  • by Drinahn ( 555664 )
    "..do away with linking or framing without permission." No it won't. It won't stop anybody, because people actually have to sift through their logs and track down people who are doing before they can then start hassling them over it. Sueing people on an individual basis is not a viable method for enforcing something like this. The web is basically free of legislation. I suspect it will remain that if you don't want to have something copyright infringed, don't put it on the net.
    • It won't stop anybody, because people actually have to sift through their logs and track down people who are doing before they can then start hassling them over it.

      You might want to check out www.perl.org [perl.org]. It's terribly obscure, I know, but the tiny handful of programmers there have created a text-processing language that could "sift through" millions of lines of httpd server logs in a matter of minutes or even seconds, catalog the referrers and hit counts to a database, and then automatically email alerts to the legal department about infringers operating on a large enough scale to be worth pursuing. Who knows, but you might even be able to interface this "perl" with another tool called "whois", which can be used to determine the full address of the party legally responsible for the infringing domain, and maybe even use the DNS system to figure out the identity of their service provider. How cool is that?!

      Ahem. For organizations with sysadmins experienced enough to apply tools more sophisticated than cat, tracking down significant bandwidth and IP thieves is trivial. And if you don't think suing significant violators is effective, go talk to Shawn Fanning. Stopping insignificant offenders generally requires little more than an email to the abuse address at their web host.

  • Sounds right to me (Score:5, Interesting)

    by barzok ( 26681 ) on Friday February 08, 2002 @12:04AM (#2972211)
    It's OK to make thumbnails of original artwork from my website (for example, photos in the gallery of an amateur photographer), but that website can't make links to those photos in such a way that they are appear to be owned by that site.

    IOW, the ruling protects me from you passing off my work as yours. But it does let you borrow a thumbnail of my images, perhaps to link in a fair way to my site. Sounds good to me.
  • by CaptCanuk ( 245649 ) on Friday February 08, 2002 @12:05AM (#2972214) Journal
    Based on what they stated, any adjustment to the actual image can be considered enough of a change. One could scale to 99% the width and 99% the height and use that image to link to. Or perhaps just use the img width and height tags to display the linked image in a smaller size; you may be linking to the image but it's displayed in an altered form.

    I wonder if that's sufficient to get around the ruling.

    • by dinotrac ( 18304 ) on Friday February 08, 2002 @12:46AM (#2972395) Journal
      I wonder if that's sufficient to get around the ruling.

      Probably not. If you read the Court's discussion, you would have seen that thumbnails were ok, in part, because they had been sufficiently transformed from the originals to be unsuitable to serve the same purpose as the originals.

      I would be that most 99% thumbnails could substitute pretty well for the original pictures.

  • This is a great thing for the most infernal practice on the web - people loading other people's work into their frameset, with their titles and their content on either side of it.

    If this isn't allowed, finally we'll be able to have some place where the author of the work has either the rest of his website recognized or has it branched away from the "link-pirate".
  • It is reassuring to see that the courts haven't thrown out fair use altogether, but (IMHO) the ruling that you can't link to offsite pictures has bad implications. If I put a link on my site, all it is is me telling you where to find such-and-such. Now I am not allowed to tell you that information? Can I give you a URL that you see as text? What if you end up viewing my text in an e-mail program that automatically makes my URL a link?
    • Re:Mixed Feelings (Score:4, Informative)

      by dinotrac ( 18304 ) on Friday February 08, 2002 @12:53AM (#2972420) Journal
      The ruling was not against providing links.

      The ruling was against linking directly to images. More specifically, it was for linking directly to and displaying images without any of their original context.

      People could see Kelly's images without knowing they came from Kelly's site, or without any of the information he might wish to have associated with them.

      To add insult to injury, they'd use his bandwidth to serve them up!
  • referer (Score:2, Insightful)

    by oregon ( 554165 )
    If you don't want an image linked to, then just check the referer and refuse to serve it.

    Simple. Use technology, not the law.
  • By displaying thumbnails as link to the actual pages, they are not in contravention. But what about cached copies of the full images?

    • But the actual pages come up as frames surrounded by Google's image search. So, Google might be in trouble if this decision were allowed to stand.
    • Google allows the source to opt out of being cached. If there's any legal challenge, Google takes stuff down. They're on safe legal ground, and you would be if also you obeyed every cease and desist order.

      Nothing about Google really makes much of a basis for legal argument, because they're always willing to back down. Same deal with www.archive.org.

  • by Apuleius ( 6901 ) on Friday February 08, 2002 @12:12AM (#2972250) Journal
    Unless I'm misreading, this means that
    $WEB_MONKEY[0] at $SITE[0] can't put a
    link like this: <img src="http://$SITE[1]/image.jpeg">
    without being smacked down by
    the admins at $SITE[1]. In the early
    days of the Web people who resented such
    linking would hack Apache to demand the
    right referrer before serving an image.
    It's still the better solution in my view,
    but the courts are right to intervene.
  • by catsidhe ( 454589 ) <catsidhe&gmail,com> on Friday February 08, 2002 @12:12AM (#2972251) Homepage
    ... but is a serious question.

    What effect does this decision have on everyone in the world who isn't in the USA?

    Would enforcement rely on a Skylarov effect [slashdot.org], or an 'effective place of publication' ruling [slashdot.org], or both?
    • disclaimer: i'm not saying i agree with the reversals or the ninth's decisions. but, it is recognized as a *very* activist court, meaning that if it overreaches in the opinion of any higher court, it can find itself reversed quite easily.

      there, hopefully that will help. :)

      jon
      • Blockquoth the poster:

        meaning that if it overreaches in the opinion of any higher court, it can find itself reversed quite easily.

        I might be wrong, but I believe there is in fact only one higher court, the United States Supreme Court.
  • <FilesMatch "\.(png|jpg|gif)$">
    SetEnvIfNoCase Referer www\.yourdomain\.com good_referer
    Order Deny,Allow
    Deny from all
    Allow from env=good_referer
    ErrorDocument 403 http://goatse.cx/hello.jpg
    </FilesMatch>
  • by BlackStar ( 106064 ) on Friday February 08, 2002 @12:27AM (#2972311) Homepage
    First people, get the facts straight and don't shoot from the hip from the badly "framed" byline. You may still link to a site from yours. That's not an issue. But you may not extract or appear to be the origin of information from that site by inline embedding or framing of subsections of that site.

    Why is that bad? Why is that "against a free and open Internet"? That protects copyright. That's ALL. A photograph is copyright by the original author. So is a written work. So is source code. In fact, copyright and license is all that's stopping a popular enemy of many of the readers of this site from running off with a lot of source code and using it in proprietary products. This law protects the originators of work. It gives the author the ability to control and decide how that work will be used.

    Anyone can still create excerpts of works for research, indexing and review purposes such as short links to stories, quotes of larger works, and now, thumbnails. This law extends the long-respected and venerated copyright law into the realm of digital images, and in what I personally feel is a responsible and very fair way.

    For once, the law appears to be creating and extending a statute by case law in a fair way, in line with the intention of the original law, and it's getting slagged by some of the people it protects. How disappointing.

    Try to weigh the rights of an author to own their labour vs. a free for all. This law protects and extends the right of each of us to create something, and either give it away, or sell it, or distribute it in some other novel way. Without that, anyone can take anything any of us does and use it in any way they wish, without our permission, and without compensation, and most importantly, without any concerns as to the intent for the use of the work originally.

    Thus endeth the rant. Just think.

    • So resizing in photoshop makes it a derivative work? Interesting. Resize to 99.5% and who'd know the difference.
    • In fact, copyright and license is all that's stopping a popular enemy of many of the readers of this site from running off with a lot of source code and using it in proprietary products.

      Umm, if there were no copyright law, there wouldn't be any proprietary products in the first place.

      Being against this ruling and against copyright law is not hypocritical. Being for the ruling and against copyright law is. (Being against copyright law and for the GPL, except as the lesser of many evils, also is).

      • Trade secret law (Score:3, Insightful)

        by yerricde ( 125198 )

        Umm, if there were no copyright law, there wouldn't be any proprietary products in the first place.

        Yes there would; they'd just be protected under trade secret + contract law rather than copyright law. Copyright infringement cases are generally civil cases, and damages usually don't top five figures per work infringed. Trade secret cases [execpc.com], on the other hand, carry even bigger damages, plus jail time for all involved.

        Being against this ruling and against copyright law is not hypocritical. Being for the ruling and against copyright law is.

        I agree with many of the general principles of copyright, and I agree with this ruling, but I don't agree with the specifics of the implementation of copyright in the United States. For instance, I don't agree with the anti-circumvention provisions of the DMCA as interpreted in recent cases (the courts have flatly ignored many of the exceptions), and I don't agree with life+70 copyright terms [wikipedia.com]. I also don't like companies whose products teach a message of sharing but who do not themselves share (i.e. license to individual webmasters under reasonable terms) their own IP [preciousmoments.com]. Does that make me a hypocrite?

    • In fact, copyright and license is all that's stopping a popular enemy of many of the readers of this site from running off with a lot of source code and using it in proprietary products.

      Hmmm, seems to me, that it is copyright that created a popular enemy of many of the readers of this site. If there was no copyright, that enemy would not exist, and there would be no reason to protect this code from them, and through circular logic, no need for copyright.

  • You know, I'm all for intellectual property rights, but the world would be a nicer place to live if everyone would just give a little bit. All these big companies are fighting for every square inch of what they think they're entitled to when they'd actually be doing themselves a favor if they lightened up on the iron grip. Fan sites build up interest and bring revenue to music groups and TV shows and such. Now I absolutlely believe that companies have a right to be selfish and keep a tight grip on their intellectual property, but they'd do themselves a favor if they stopped acting like toddlers with a toy they don't want anyone else to play with...
  • This is absurd. (Score:4, Insightful)

    by 1/137 ( 179946 ) on Friday February 08, 2002 @12:30AM (#2972323)

    This is absurd.

    Imagine some site has a web page that displays a picture surrounded by adds. Lets keep things simple, and say there is one image for the picture and one image for the ad. A normal web page directs your browser to request the image for the picture, tells you where to display it, tells it to request the ad image, and then where to display it. (actually, the ad probably comes first!).

    In this case, you could view the html source yourself, type in the URL for the image you want, and voila, just the image would pop up. No copyright infringement, because they have built their site to provide the image to any anonymous client on demand.

    But now if I write a page that instructs your browser to go to the other site and request the original image, then surround it with flowers instead of ads, this is copy right infringement. But they gave it to you on your request.

    Its like if I tell you, go to Addison-Welsey, and ask them to give you a free copy of the latest Britney Spears Bio, and they'll give it to you, and they do, and then charge me with copyright infringement.

    If they don't want people to access the data anonymously, all they have to do in not give it away anonymously

    In our simple exam, the site could post a single gif image that has the adds and the original image combined.

    • Re:This is absurd. (Score:5, Informative)

      by Bonker ( 243350 ) on Friday February 08, 2002 @01:18AM (#2972500)
      If they don't want people to access the data anonymously, all they have to do in not give it away anonymously

      Mod this guy up.

      I worked for an artist one time on a website to sell nice framed prints of his artwork [kennethwyatt.com].

      The trick was that the guy didn't want to put any pictures of his art on the website.

      I told him very clearly and simply that he had two options. He could choose to give anyone who wanted it tiny versions of the art for free... a 1024x768 jpeg of any given piece of large framed art probably suffers about 90% resolution loss... and hope that the people who liked them would buy the full-sized wall-hangers, or he could not put them on his website and expect people to buy works of art they couldn't see.

      I convinced him after a little while, and he made a few thousand dollars selling stuff. Then one of his relatives convinced him that people were stealing from him by downloading the images of the website, so he took most of them down. Now he doesn't make much money any more.

      I just checked the site again, and a few of the pictures are back up... at a greatly reduced filesize. I bet he starts making money again.

    • I do think it's wrong to take the image and use it for your own purposes. However, you allude to a much better solution than taking it to court. A server can simply verify that the referring page is the correct one and reject the request otherwise.
  • Then tell me what this thread [cni.org] is doing discussing bascially the same thing but is dated back to Dec 1999.

    And these other articles as well dating back to Nov 1999.

    Note 276 In Kelly v. Arriba Soft Corp., a California federal district court ruled that the defendant's use of "thumbnail" images in its search engine was fair use and did not infringe on the rights of plaintiff photographer. [jurispub.com]

    [mishpat.net]
    * Thumbnail photo not infringing *
    Ditto.com uses an automated program to crawl through the web collecting and building a database of images. When a user puts a specific term into Ditto.com's search engine, thumbnail reproductions of those images pop up. A California photographer who specializes in images filed a copyright infringement suit. A Southern California federal judge handed a preliminary ruling in favor of Ditto.com
  • ... that size didn't matter.

    Thanks Slashdot. When I get back from work today I can shout to her "Hey! Size does matter after all."

    No wait.....

  • The relevant site (Score:4, Interesting)

    by Jade E. 2 ( 313290 ) <slashdot@perlsCO ... minus herbivore> on Friday February 08, 2002 @12:37AM (#2972356) Homepage
    The person who filed this suit, Leslie Kelly, has a website at http://netcopyrightlaw.com/ [netcopyrightlaw.com] that has lots of information (FUD) regarding how evil (useful) search engines make millions (diddly squat) by stealing (indexing) innocent content providers' (money-grubbing bastards') images. It's an interesting (disgusting) read.

    Note: Reality filter in effect, suggested changes added in parentheses.

    On another note, this decision really has nothing to do with hyperlinking, only with embdding other content into a page without attributing it, i.e. either using frames or the SRC of an IMG. The only way it even vaguely relates to hyperlinks is that it's not really clear under this decision whether creating a hyperlink to an image directly instead of linking to the page that contains the image is forbidden. I don't see any language to that effect, but it could be considered unattributed display nonetheless.

    • One question:

      Why, in this context, is Kelly, who produced the pictures and who hosts them and whose bandwidth was serving the pictures up, a money-grubber, but Arriba, which was trying to make a buck off of Kelly's work without paying a dime or even paying to host the pictures, isn't?
    • Hmmm, that site has a link to 'Amish.net'



      and here's a yummy quote!


      A number of new image search engines have attempted to take advantage of the fact that website owners have posted their images and text to be seen, enforced by a widespread belief that anything on the Internet is "free" for the taking, and created new businesses based on "fair use" of these images to earn hundreds of millions utilizing the images indexed, harvested, scoured and vacuumed from websites worldwide.



      Clearly this person is either ignorant or stupid.

  • Size (Score:3, Funny)

    by Glytch ( 4881 ) on Friday February 08, 2002 @12:37AM (#2972361)
    What happens if someone has really big thumbs?
  • I think this might be able to apply to mp3's as well. For instance, if I have an .m3u mp3 playlist on my web site that links over http to mp3's on another person's website, that is similar to representing the mp3's as my own.
  • The easy solution... (Score:3, Interesting)

    by technopinion ( 469686 ) on Friday February 08, 2002 @12:44AM (#2972386)

    Just include some text imbedded on the images on your site with your URL. That way, if another site links to your image, at least you get some advertising out of it.

    Now here's a related question... if I take someone else's picture and convert it to colored HTML text, like the random babe @sciifyer [newsqueak.com], is that considered fair use?

  • by Tassach ( 137772 ) on Friday February 08, 2002 @12:57AM (#2972433)
    The article [or at least the lawyer they quote] says that this ruling will do away with linking without permission.

    IANAL, but as I see it, by posting somthing on the web via a publicly-accessable URL you are giving implicit permission to everyone on the planet to view, and link to, your content. I would imagine that failing to have any kind of access control mechanism on your site would provide the would-be linker with an automatic defense. You can't put up a billboard in a public place and then complain that the wrong kind of people are looking at it, or that someone took a picture of it.

    If you want to control the way people use the content you put on the web, you need to rely on technical means, and not the law, as your primary means of defense. If you want to control deep linking, set up your site so that it requires a password, or cookies, or requires a referrer field from an internal URL. Without some attempt to control access, I'd imagine you'd have a very hard time convincing a judge and jury that you were not giving the world an implicit license

  • Big thumbnails (Score:3, Redundant)

    by Lord Sauron ( 551055 ) on Friday February 08, 2002 @12:58AM (#2972439)
    They didn't specify the size of the thumbnail, did they ? What if I happen to choose 1600x1200 as the most suitable resolution for my thumbnails ?
  • "But the court found that displaying the full-sized images through linking and framing was not transformative and harmed the market for the original photographs."

    This is sheer thuggery, as is much of current so-called "copyright" law. Simply pointing to an image which was voluntarily, knowingly posted by the owner (or authorized party) on a publicly supported Internet[work] specifically for anonymous viewing, is gloatingly labelled "theft" by word-twisting professional liars.

    Bullpucky.

    The better anology is a man who is accused of theft because he pointed to a window, whereupon curious onlookers went over to look at the window and what was behind it, namely publicly mounted curiosities which the arrogant owner had expected only to be viewed by a very few people who even knew of the location of the shop, let alone that odd curiosities were there to be seen with which to begin.

    If the arrogant owner hadn't wanted people on the public sidewalk to see his curiosities for free through his window, then why did he put them in the damn window with which to begin? He could have charged admission for people to enter a private room, or he could have put a curtain over the inside of the window, to be whipped aside only for paying customers. He is NOT ENTITLED, however, to essentially steal the public sidewalk from the public who paid for that sidewalk!

    The courts are populated by bubbling morons who've taken it into their pinheads that their smarmy success at political cronyism means they are real judges. A plague on the lot of them.

  • Regulate them! (Score:2, Interesting)

    by mi ( 197448 )

    Let's see an Australian wondering, why this sort of things are not government regulated and require all this pricey legal procedings instead...

    After all, it is so much easier to pay taxes to support the additional government machinery and then you just file a few forms and have your problem resolved by a government employee! And you can even appeal a decision you don't like -- to the employes's boss...

  • When /. mentioned "frameing" in the synopsis, I thought (honest, why would I make this up) those cheesy simulated picture-frame borders that some people insist on putting around their digital images. I'd like to see that made against the law, even if you own the image.

    On the other hand, maybe this law will help end one of the many html frame abuses. Maybe we'll see more laws in the future which make bad web design illegal. Imagine if popping up windows you didn't ask for was declared vandalism, whether done by javascript or some installed program's registration reminder or advert. That would, perhaps, be the greatest day in gui history.

    -Paul Komarek
  • So, according to this case, if I provide a link from my website to a relevant image from your website, but without the content around it (i.e., a link to just a certain image from your stie), that's a violation?

    If my users need a specific image from your site, why should they have to download the image, which they need, and all that surrounds it, which they don't? The net shouldn't be slowed down by such nonsense. Also, your server bandwidth is wasted because your server has to upload the image which they want, along w/ alotta stuff they don't.

    What about Google.com's image searcher, which allows images from sites displayed in-frame? What if I want to include an image from your website in my site, but just that image, and in a specific place? Why should the efficiency of the net be hindered by having the same information stored in different places, when need not be? (Of course, some would argue this is a virtue, as redundancy reduces vulnerability to data-loss).

    The simple fact is, the internet should not be allowed to be harmed by IP laws. Such rulings diminish and reduce the usefulness of the internet, its functionality, even its it ideology.

    This brings me to a suggestion I was thinking of for quite some time regarding the net. Why should web-publishers dictate to users HOW they view information? Why should they have to bother? What I propose is a system whereby information is transmitted in groups, packeted, its layout not completely controlled. For example, take slashot. Under my system, the web-publisher would write something like (in pseudocode)

    TITLE: "XYZ".

    SUBJECT #,type,date,#character,size-of-all-responses,#resp onses: "XYZ". Where # indicates the articles # in the typical order in the site; type is the type of article, such as Your Rights Online; #character, the number of characters in the portion of the thing displayed on the main page; size-of-all-responses indicates the net amount of words of all the responses added together; and #responses indicates the # of responses to the article.

    Etc.

    You guys get the point. Instead of dictating to users the exact layout of sites, sites would give them information about the sections of the sites, and individual's browsers would CHOOSE how to display them, based on the user's preferences. I haven't attempted to explain this idea to its limits, but the possibilities are endless. Its representative of the true nature of the internet: minimal control.
    • as a supplementary to my remarks on controlling web-page layout through user-preference, another possible way to achieve this would be to allow each user visiting a website to create a completely customized website, by creating a "user preferences" profile w/c would be stored on the site's server.

      However, this is suboptimal for several reasons.

      (1) It allows possibilities of privacy violations.

      (2) It violates the principle of end-to-end. Control and intelligence would be centralized in networks, rather than at the ends. This is precisely the type of thing which the internet's early "creators" did well to avoid, because avoiding such allowed vast flexibility.
  • by Nathdot ( 465087 ) on Friday February 08, 2002 @01:54AM (#2972587)
    If you've ever "accidentally" been directed to a "leisure" site then, like me, you were probably convinced that only thumbnail images exist.

    This case is a landmark for me because it provides evidence that non-thumbnail pr0n is actually out there somewhere.

    :)
  • What about google? (Score:3, Interesting)

    by DunbarTheInept ( 764 ) on Friday February 08, 2002 @01:58AM (#2972598) Homepage
    What implications might this have on Google's image searching feature? They give a thumbnail, but they also let you see the whole picture as an remote paste into their page. This is a case where they *are* pasting the remote image into their own HTML page without the surrounding context, so in that sense it seems like it would violate the ruling made. But on the other hand they do it in a way that makes it obvious that this *is* an image from a remote site and they aren't trying to pass it off as their own work.

    How would the ruling affect this case?
  • What if the original image is already small enough to be a thumbnail? For example, what if you paste a copyrighted icon of a stop sign, or a left-arrow, from someone else's site? Would that be a legal inclusion, or would you have to shrink it down even further into an incomprehensable dot to make it legal?
  • What is thumbnail? Will 788 x 598 thumbnail of a 800 x 600 go? How would they decide?
  • by TarpaKungs ( 466496 ) on Friday February 08, 2002 @05:06AM (#2973074)

    Just for 1 second...

    I've got a personal website, www.dionic.net [dionic.net] (Come /. my ISDN ;-)

    Just a handful of holiday snaps - not professional grade at all - but OK. I put them there because some people may find them interesting.

    Trouble is - if you link directly to the larger scale images, as someone else said, you eat my feeble bandwidth and no-one knows about my site (unless they can be bothered to examine and dissect the URL a bit).

    What I would consider more reasonable would be:

    1. Link to the enscapsulating page so they see the context of the image as I intended and have links to the rest of my site
    2. By all means copy a thumbnail again with a link to the enscapsulating page
    3. Email me and if you're a not-for-profit site and you're site isn't on my very tiny list of things I don't really want to be associated with, I'll give you the full size (2400x3600) scan for free, if you'd be kind enough to mention me in a credits list somewhere
    4. Or link directly to the image and include a short credit and a link to my home page near your link to my picture.

    On point 4 if your site get's major hits I may need to chat about my link getting slaughtered and may suggest moving to scheme 3. But upto that point, at least your site is visibly linking to mine in some form so it's good for me :-)

    Sure - I could do also sorts of things to the server like traffic throttling, HTTP referer checking etc. But for this thread I'm just considering the ethics from my POV.

    My idea of what's fair won't be someone else's. So if you want to use other people's stuff to enhance your site - just ask. You may be pleasantly surprised - especially if you try to do something for them by way of advertsing their site in return.

    Why can't we all just try the cooperative route before banging on about rights?

  • by nagora ( 177841 ) on Friday February 08, 2002 @07:29AM (#2973296)
    Copyright doesn't apply to the linking site; it didn't copy anything. The real case, insofar that there is a case, would be against the browser maker for allowing img to work tags without permission, which is clearly silly.

    You make it publicly available, you have to live with the public seeing it. There are server directives for when you don't want it to be publicly available.

    TWW

  • I think the discussion may have missed both a novel aspect of the case [findlaw.com] (PDF) and a significant factor in the court's analysis:

    First, the infringement didn't occur because ditto.com copied the work, but because they violated Kelly's right to publicly display [findlaw.com] his work. A run-of-the-mill infringement claim is going to involve copying or creating a derivative work, which makes the analysis in this case relatively interesting.

    Second, the question of whether ditto.com infringed on Kelly's right to display his work still came down to a question of fair use [findlaw.com]:

    • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    • the nature of the copyrighted work;
    • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    • the effect of the use upon the potential market for or value of the copyrighted work.

    In this case, the infringement of the right to display came, essentially, because Kelly was trying to sell copies of his photographs and ditto.com displayed the images in a way that made it less likely that people would ever visit his site (why bother? they could right-click the images displayed on ditto.com's site) and buy copies of his works.

    In other words, the analysis could be different if the copyright holder isn't trying to sell copies of their work. It could also be different, I think, if one of the other factors tilted more strongly in favor of the defendant: for example, a not-for-profit use of a work in a context of political or artistic discussion.

    Mike "Still Bitter About Submitting This Story Yesterday Morning and Having it Rejected" Skoglund

  • by bwt ( 68845 ) on Friday February 08, 2002 @11:12AM (#2974125)
    These judges just completely botch the inline linking part of their decision. Arriba simply isn't displaying anything.

    It shouldn't be a "fair use" case at all, but rather a question of whether permission is given for the use. Arriba use of an inline link is nothing more that a REQUEST to use the images. The result is that a http GET command is sent to kelly's website. Kelly is the one who chose to put his files in the web server. Kelly controls the programmatic response of that web server. When Kelly's web server responds by sending the image, it is Kelly that is authorizing display on the end user's machine.

    The fact that such an image can be framed is a flexibility directly supported by the browser paradigm and HTML standard. When Kelly puts his images in a web server, he is de facto authorizing their use in the HTTP/HTML/browser context. The court doesn't even ponder this.

    It is completely absurd to say that Arriba is "displaying" their images unless Arriba puts full sized copies on their own web server. Instead it is more appropriate to say that Arriba is providing the end user with a request form (HTML) to display. That isn't "use" at all.
  • by StoneTable ( 145114 ) <stone@stone[ ]le.org ['tab' in gap]> on Friday February 08, 2002 @11:20AM (#2974170) Homepage
    I've been working at the company in question, ditto.com [ditto.com] (formerly known as Arriba Soft) for several years, designing and building the technology that lead to this. The judge ruled against Ditto on one point, that being the display of the full-sized image. I'd like to clarify what exactly that means, though.

    All thumbnails displayed are served from our own servers, not using the bandwidth of the sites being displayed in our search results. The issue that came into play was what happened when a user clicked on a thumbnail. When that happened, we would pop up two windows (as ugly as that is). One would contain just the full-sized image hosted on that site's server. The second window would be the actual page that the image was found on. Because of the judge's ruling, we no longer pop up the full-sized image, just the page that the image was found on.

    I don't think this ruling will have much impact on us and others like Google [google.com] who are providing the same type of service. The judge ruled upheld the previous ruling about fair use of thumbnails, which is the primary concern of this business.
  • by a3d0a3m ( 306585 ) on Friday February 08, 2002 @11:22AM (#2974179) Homepage
    If you create an image and you don't want other people linking to it without context, then you need to learn about HTTP. If you are too stupid, then you should pay someone to do it for you. The simple solution is a script or web server hack that checks the HTTP headers for a referrer and denies all requests for images without a referrer pointing somewhere on your site.

    Here, from the HTTP 1.1 RFC [isi.edu], the section on referrers. Any browser worth it's spit should provide the correct Referrer header.

    14.36 Referer

    The Referer[sic] request-header field allows the client to specify,
    for the server's benefit, the address (URI) of the resource from
    which the Request-URI was obtained (the "referrer", although the
    header field is misspelled.) The Referer request-header allows a
    server to generate lists of back-links to resources for interest,
    logging, optimized caching, etc. It also allows obsolete or mistyped
    links to be traced for maintenance. The Referer field MUST NOT be
    sent if the Request-URI was obtained from a source that does not have
    its own URI, such as input from the user keyboard.

    Referer = "Referer" ":" ( absoluteURI | relativeURI )

    Example:

    Referer: http://www.w3.org/hypertext/DataSources/Overview.h tml
    If the field value is a relative URI, it SHOULD be interpreted
    relative to the Request-URI. The URI MUST NOT include a fragment. See
    section 15.1.3 for security considerations.

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