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9th Circuit: Thumbnails Are Big Enough For Fair Use
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.'"
What penalties can be enforced for a violation?
"ph34r my 1337 n3kk1d ski11z!" - largo of megatokyo
All is for naught unless adequate enforcement is supplied. So far, all we have is the option to sue over copyright infringement.
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
Play with my webcams and lights here
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.
---- The geek shall inherit the Earth.
What if I were to include the entire image, but scale it down to thumbnail size in the web browser?
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".
if you want your copy-right dont post the shit on the web. dumbasses...
Hey, there is only one Return and it's not of the King, it's of the Jedi.
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?
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.
---
Oregon
By displaying thumbnails as link to the actual pages, they are not in contravention. But what about cached copies of the full images?
http://pcblues.com - Digits and Wood
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.
... 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, or an 'effective place of publication' ruling, or both?
"This is a Hollywood movie: when it comes to the Laws of Physics, they're lucky if they get Gravity!" --- my wife
heh, the ninth court of appeals is reversed constantly. don't be too optimistic about this ruling standing up in higher courts, since the ninth court has a particularly bad record with reversals.
some references:
"Let's say this is a court on the cutting edge of jurisprudence," Richards said of the 9th Circuit court. "It may be the most reversed court."
"Of course, this is the Ninth Circuit, the most reversed court in the country, so the road is likely to be bumpy."
"Our final area of concern is that we are talking about the Ninth Circuit. That Circuit is much too large, which has made it difficult to develop any collegiality. As a result, judges have not developed common legal approaches to their decisions, and they are often even unaware of each other's decisions. The case law that has developed from this situation is often conflicting within the Circuit. Further, as judges have learned to act as laws unto themselves, they have frequently made unconstitutional decisions. It is by far the most reversed court in the country."
jon
-- http://www.cerastes.org
it's the school canoe
Comment removed based on user account deletion
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>
STOP ME BEFORE I POST AGAIN!
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
-- http://www.cerastes.org
/. Ticketmaster stories
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.
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.
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.
My handle breaks slashcode, what does your handle do?
I might be wrong, but I believe there is in fact only one higher court, the United States Supreme Court.
The Mongrel Dogs Who Teach
Then tell me what this thread 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.
* 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
--Metrollica
Thanks Slashdot. When I get back from work today I can shout to her "Hey! Size does matter after all."
No wait.....
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.
What happens if someone has really big thumbs?
I'll be happily linking here in Canada. With all the fun legal precedents being set in the US these days, I'm *so* glad I'm not an American. Best of luck to you guys...
I can understand legislation like this, but how would usage like this fit into the law. The government needs to quantify what a thumbnail is to avoid ambiguous future interpretations.
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 future isn't what it used to be.
One lawyer is quoted as saying, 'It's basically going to do away with linking or framing without permission.'
I might be alone on this one, but "do away" and "make illegal" are two very different things. Most people probably don't care about decisions like this.
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, is that considered fair use?
You managed to avoid the man with the red hat then? Please tell ... pretty please ...
It apears to be more about deep linking then about fair use concerns. The Real Problem is the courts are trying to figure a balance of fair use and deep linking... It is like the EMail question. Were does the right to send email to someone end and spam begin. These are hard questions to answer and the courts are tring to make case law to set that balance.
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
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
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 ?
The next thing you know, they're going to start saying that downloading an mp3 of someone's song and then having a link on your site to the song is illegal!
"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.
A truly excellent pizza parlor is a delight unto the heavens. Treasure the sauce and the toppings!
If you don't want your picture to be linked/copied STAY THE HELL CLEAR OF THE 'NET! .ca, .ru or any other free country.
The Internet as has its own legislation in the RFC's and any other attempt at regulation is an infringement on people's rights. The only acceptable way of internet regulation is the submission of an RFC -- governments are perfectly welcome to do that. However, when they are trying to impose their bloody-handed corrupt and retarded ways on our self-regulating progressive community, it sounds like a call to arms.
Anyway, we're stronger than they are. It doesn't take too much of an effort to move to
Slashdot sure is going thru a dry spell in news stories. I love reading the stories that make it thru the harsh acceptance, but there hasn't been much that interests me in the past while.
For example, talking about the legality of thumbnail use isn't exactly what I call a good time. I wish that there was a system in place that let modarators pick which stories got posted and which didn't based on each moderators individual preference. That would be cool, and take a ton of work off of the admin's workload.
Just an idea though. I'm sure I'll get mod'ed down for this.
rejected (19) accepted (0)
Is there a psychological term related to getting your stories rejected on slashdot?
However they serve the page, then re-direct to an error page so you can actually save/read the sucker :-)
Linux is Linux, if One need clarify their dist: <Dist>/GNU Linux
bsds are of course just BSD
that was supposed to be "an "
My server
they are just searching the web and displaying the pics? How would this fit in to all this? Might they be the first casualty since they are large enough and prominant enough to be sued?
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...
In Soviet Washington the swamp drains you.
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?
p 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.
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,#res
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.
social sciences can never use experience to verify their statemen
Take a close look at what the last comment was in law.com article... Ms Annette Hurst says "It's basically going to do away with linking or framing without permission." The key thing to consider there is the little word "OR". Ms Hurst seems to be stating that it's illegal to LINK without permission. It's only the action of INLINE LINKING which the court found to be objectionable. Putting a link from my web page to your is still perfectly legal (unless I've missed a case somewhere).
Of all all the circuit courts, the 9th is the one most known for promoting big government and taxes. Of all the ciruit courts it is considered the one most at odds with freedom and individual liberties. It is the ultimate Bill Clinton court, a court where the individual is crushed by the thumb of an intrusive, collectivist, nanny government. It comes as no surprise that they wish to destroy the internet as we know it, piece by piece.
This is truly moronic.
The US is only one country. The internet is a global network. You may be the all powerful, fire-breathing, shit-eating dragon, but the last time I looked your moronic system still only applies within your borders.
...or does the massive trolling count as porn?
So will this say kill all unauthorized DBZ, or anime fansites hosting photos and media?
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.
:)
does this mean i can copy someone's audio cd to a mini-cdr and use it under fair use? it's smaller ain't it?
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?
Don't label something "offtopic" unless you know the topic well enough to tell what's on topic.
This problem can be completely and easily resolved by technical means. The law really should stay out of complex tech. issues, technology changes too fast. Laws should be general.
I mean really, just set up your server using referrer so that if someone inlines an image from your site, you substitute, oh say that awful goatsex picture. They would stop damn fast, I gar-on-tee!!
PK: 09F911029D74E35BD84156C5635688C0
The next lawsuit is someone that states that the "cached" version of the web page is going to be a copyright violation using this case as an example.
Mirroring without permission. Then there is Akamai.
...swift smack in the head. You lugnuts have been fighting for a piece of that sweet, sweet, iPie since the whole damned thing was created. The Internet is not something used to fill Mr. Greedy's pants with dough. Sorry. If someone wants to link to another site, that's great, it helps to propagate business. No link, no business. We need to get our cranial-rectal orientation rectified or else we're going to end up killing the one thing that means the most to people. Think about it before you open your paid-off mouth.
-- Game Developers: Stop porting badly-textured games from crappy console systems!
... don't thumbnail Mickey Mouse.
Copyright law is pretty loose until someone fucks with Mickey.
fuckedcompany is also subscription based.. It's not a pure ad supported site.
True. Congress can always add another inferor appellate court though. The District Courts (the present federal trial level) is comparatively new... dating back to, IIRC, the late 19th century.
Given another hundred years or two, we might very well see four tiers.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
So you say, you purposefully wrote a stupid statement, to point out how stupid another statement was? And to what will such a style of discussion lead us? The stupidest argument wins? Sorry, it would have been better to point out, why the statement you disagreed with was invalid. Instead you choose a particularly bad anology, and don't even bother to score a valid point against the post, which you apparently didn't even read.
And all you achieved by this is, that you made yourself look incredibly stupid.
The whole problem with your post is, that you ignore what's being said and reply without thinking and so, in consequence, fail to communicate.
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?
Don't label something "offtopic" unless you know the topic well enough to tell what's on topic.
posting inline /img links on an html messageboard is infringement?
What is thumbnail? Will 788 x 598 thumbnail of a 800 x 600 go? How would they decide?
<^>_<(ô ô)>_<^>
So now we need the GPL to work for linking to a GPL painting or picture?
Or can it be deemed illegal for linking and taking anything out of context but then again this is free speech, not copyright infingment?
How do hardcode in the protections that the court requires? So sure, Arriba does not allow the picture to be expanded in the web browser, but what is to stop average joe user from expanding the picture in say, an image viewer? This doesn't seem to accomplish anything functional. Instead, it shows that the courts, in many cases still don't understand the technological ramifications / limitations to their decisions.
Witty quotes suck.
But what about cached copies of the full images?
Google Images doesn't cache full images but only thumbnails.
Will I retire or break 10K?
OK last time I checked all of this was done through HTTP. Now HTTP is a standard now but is technicaly the IP of somebody from CERN that origionaly developed it. Since we as consumers are constantly forced to abide by click throughs and other nasty and restraining contracts why not turn that around. Append to the spec that any object may be directly linked by any other object. Attach some language that you cant call yourself a http server without conforming to this spec.
:) Course this still required people to notice when somebodys server is broken but a properly written contract as part of the spec could allow anybody to sue perferably with a percentage of penalties going to some fund.
:) they make there fees and a percentance of the damages. The comunity at large end runs the courts interpretations of old world laws in the internet world, and a nice war chest fund to deal with other things or large offenders that no small person wants to take on.
Now as the spec also include password access if you want to make something "private" (Anything going over a network only as private at the network and any encapsulation protcal is) so if somebody deal links sure you can bring up a password.
Now anybody that wants to claim there server is an http server would have to follow the rules (OK we should do this now with servers
Think about the outcome lawyers start looking for sites that break the rules (OK would be nice if it got strict everybody sue every site servered off an IIS server
The US gorvernment can claim owndership of the network and the DNS namespace as they paid to get them started. But the technical public DOES own the new killer apps lets use them. A properly worded contract can stop all the muddle of civil litigation (AKA by using this you feely give up your rights to sue dont like it cant legaly call your server a http server maybe a cttp (that allready used?) and without a server saying http the clients all break (well untill MS makes thre browser work with there m$ttp server II$) and your site is useless. Granted this only works till AOL/TimeWarner and M$ get a patch out to EVERYBODY but for once installed base is in our favor of defending our rights technicaly.
You can start this from day one on the new killer apps whatever they be just keep control over who can say they are compatable with your protocal and what that requires them to do. Open is nice GPL the thing if you like but lets face it comercilization is ok to but lets make them work at it ala JAVA.
I should've typed "Really Bad Art Posters." Your posting was actually interesting, even though I disagree with you. Only your spelling was bad
Funny how the sender of a digital message and a print of a photo/painting wind up with similar terminology. In this case, any pun was (for once) unintentional.
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, 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. 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. Does that make me a hypocrite?
Will I retire or break 10K?
Crazy how the _courts_ get to decide what we do with the same technology that is basically outdating them. Like the whole linking thing of a few years ago, which was fortunate enough to get struck down. Either everyone is going to ignore rulings like this altoghther, making them unenforcable, or the net is really going to start to suck (even more than it already does lately)... I mean, should fair use even be an issue with crappy thumbnails? What are you gonna _do_ with them?
A few years ago I did this little animated GIF of a snowball coming at the viewer. Last year I got a few deep links, but this year it really took off. At first, I reacted by renaming the file and switching it so that they saw another GIF that said "you need to give me credit and copy the image to your own server". Yes, that's right, the GIF is FREE TO USE as long as you give me credit and host it on your own server, but people were too lazy to fulfill even that simple request.
I contemplated several solutions, none of which were satisfactory. Eventually I decided to insert a (C) 2001 VRML3D.COM frame into the GIF so that any site using it would have my copyright notice in it. This doesn't solve the bandwidth problem, but at least I get credit.
I had been thinking that if I decided to do more GIFs, it would be a PiTA because I would have to find a way to protect my bandwidth. I mean, who wants to hit their hard transfer limit just because some yuk-a-puk wants to put a GIF on some message forum? Message forums that allow IMG tags are the *biggest* offenders.
Now if I ever decide to do more GIFs like this again, it's nice to know the law is on my side. The only question I have is the question a lot of others have too: What's a thumbnail? In the case of the animated GIFs, they are already thumbnail sized, but if a whole bunch of people start posting them on those stupid web forums it could suck quite a bit of bandwidth.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
"One lawyer is quoted as saying, 'It's basically going to do away with linking or framing without permission.'"
Just like making marijuana illegal has done away with pot smoking? I suppose now we'll have police officers performing undercover operations to root out illicit linkers and framers.
And don't tell me the law will be enforced by the server owners! Sure, maybe some web-site owners will take offendors to small-claims court. They may even WIN a few cases. But that will *not* stop people from continuing to do it. This is unenforceable in any meaningful way, and will be:
1) broken by people who've never heard of the ruling;
2) broken by people who aren't American;
and 3) ignored by people who've heard about it and are American but figure they'll probably never get called on it.
I'm not saying that the ruling is a bad thing; on the contrary, it makes formal what has long been considered polite. But even so, I predict that there will basically zero change in people's design habits as a result of this.
Ted Nelson's original Xanadu concept anticipated this controversy. He advocated what he called "transclusion", which is similar to this concept of taking someone else's published data and embedding it into your own document. Nelson proposed that transclusion should be a built-in feature of the system and that contractual relationships should govern its use. People would get royalties when their published data was transcluded within someone else's site. Of course his whole system was built around a pay per view model, so the main issue was how to distribute the payments from viewers.
Xanadu had many problems of course, which is why it never went anywhere, but it seems that on this issue it was way ahead of the Web. A universal system for negotiable royalty payments would be more flexible and adaptable than the kinds of legal prohibitions which are evolving today.
I think everyone who's posted so far is missing the point of the ruling, and for that matter, the US legal system in general.
/. readers. But it is the legislature's job to fix this. The courts can only apply existing law, and here they have done a very... well, "reasonable" job of it.
Did anyone count the number of times the opinion used the word "reasonable"? I didn't, but I know the word was mentioned at least once, and is mentioned over and over in practically any precedent-setting case in the upper courts.
A 64x48 thumbnail is "reasonable" use because it does not have the decorative value of a 1600x1200 image. Nobody would think of using the 64x48 image as a desktop background. Anyone who likes the thumbnail will click the link for the whole picture - and submit to advertising, payments, whatever the original owner wants.
A 1599x1199 "thumbnail" is obviously unreasonable. Almost all the information is still there. The "thumbnail" is still useful for everything the original image is useful for. A site with this "thumbnail" would directly take some of the advertising/fees/other profit the original poster would otherwise get. So small thumbnails like those in the case are legal, while larger variations of the image are not.
Including the image in your page through a HTML "img" tag has the same effect (to each person involved) as keeping and using a local, exact copy of the image. Here the "reasonableness" of the law comes into play again. You're not allowed to use technological tricks (like calling remote images) to get around what is clearly illegal (like copying the image to your server). That may conform to the law as written, but it is "unreasonable" and any court in the country will rule against you in cases like this.[1]
Copyright law must balance the value of letting people to do whatever they want with information with the value of giving artists incentive to create content. If copyright holders hold too much power, people won't be able to use content in beneficial ways. If copyright law did not exist, nobody would put effort into creating new books/software/art, and many useful things would not exist. The current system (like most civil law) is designed to produce the most economically beneficient balance, which in this case is somewhere between the two extremes.
It may be that current US copyright law does not favor the economically best outcome - that the balance has swung too stongly in favor of copyright holders, to the detriment of everyone else. I happen to believe this, as apparently do most
[1] See cases relating to the 4th amendment for a good example.
Just for 1 second...
I've got a personal website, www.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:
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?
Why can't women be like Hedy Lamarr - beautiful, talented and inventors of frequency-hopping spread-spectrum techn
if i realy wanted to avoid someone to link to images/pages/whatever on my site.. i would limit it in my apache config.. (i once read an good article about it, but since i'm linking to some images i' m not gonna put it here :) )those who nag about it should shut up now, if you don't want someone to do someting, don't just ask em, force them...
Let's face it, there's no such thing as an uncopyable media. Never has been, never will be. What matters here is that a court has simply stated what most people try to assert on their sites in the first place - that images have a copyright. The court hasn't stated that a _link_ per-se is illegal, it's stated that _embedding_ the image in a site is illegal. This doesn't infringe on your freedom of speach, and it doesn't infringe on your fair use rights.
Incidentally: In the UK (where I am), there's no such thing as fair use rights. If a site hosted in the UK attempted to use my copyrighted images - even as a thumbnail - I would be able to sue for copyright infringement. So another interesting question would be: could I enforce those rights abroad! (ans: probably not, with any luck).
It's also not always valid to muck around with the settings of the apache browser to prevent images being served with the wrong referral. First of all: as an Opera user (at home), I have the option of disabling the referrer completely - in accordance with the RFC; so I would start getting to sites that mysteriously had no images at all (although sometimes there's a lot to be said for that idea).
Second: as a dial-up account holder, I don't have the option of controlling a webpage, I have to host on someone elses server (my ISP's). Do my images deserve less protection because I don't run my own server ?
The ways of gods are mysteriously indistinguishable from chance.
I read the PDF file and from what I understand the problem was this:
While you can take someone's photography and use it in a transformative condition - like taking art and posting it in a news article - this search engine wasn't performing that kind of function.
The difference here is that the work of a photographic artist was being represented without due credit on the part of the Search Engine. This is not much different than if I took a block of code that had been written by you, stripped your name off of it, and reposted it within my own application but with my name specifically, or by implication, associated with that block of code.
Would you not then be pissed as hell that some shithead was stealing your code and not giving you credit for it?
I do not believe that this is the end of linking and I do not believe that this is a bad thing either. In fact, I think that this is one of the first good moves I've seen in a while from the Justice System.
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
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
.. and you would most certainly loose.
There probably isn't a specified limit on what is considered thumbnails or not. This is (as it should be) decided on an individual basis by humans in the court system.
One of the things I am in life is a photographer, so how could I be opposed to copyright?
Easy, one thing anyone needs to have work sold is to be seen. The more that see it, the more potential for someone to buy it.
Here's what copyright was intended for.
To contain unwanted COMMERCIAL use of a work for profit, without the permission of the owner.
That's all, nothing more. I have no rights to my images beyond commercial use, and even my rights for commercial use require limits for the greater rights of society as whole.
A court will be able to take personal jurisdiction (power over a defendant) and be able to render judgment against them if the defendant's actions cause reasonably forseeable harm in the forum (place where the court is).
In other words, if you are in Germany, and you link to and display copyrighted pictures in your frames, and the copyrighted pictures are the work of someone in... say, Maryland in the US, the plaintiff can proceed against you in the Maryland court because the injury, loss of sales/advertising/etc. was caused to the plaintiff in Maryland. OK, you say, but what if I never go to Maryland? What if I don't show up, and never enter the US? How can the plaintiff enforce the judgment against me? Well, most nations have signed treaties that basically say "If your courts have rendered a valid judgment against a defendant, our courts will enforce it." The US Constitution has the Full Faith and Credit Clause which pretty much does the same thing between US states, so that California would have to enforce that Maryland judgment. What that means is that, sure, you can ignore the US proceeding against you, but if Germany, or whatever country you're from, has signed such a treaty with the US, all the plaintiff has to do is take his judgment to your local German court to have it enforced. They slap a lien on your car, and the local law enforcement officers come out and auction it off to pay the judgment. The reciprical of this is what got Yahoo in trouble with France. Sure, Yahoo is an American company, and they could have told the French court to go to hell, but if they did, and then the French court rendered a judgment against them, the French judgment would probably be enforced by an American court.
The long and the short of this is, don't assume that just because you are outside of a nation's borders, you can violate their laws to your heart's content. If you injure someone in that country, it's pretty likely that they will be able to drag your ass into court.
Maybe *because* somewhere someone stated that tumbnails are not a violation of copyright, that someone else got the idear that therefor everything else must be a violation.
t h=X,height=Y')">image</a>)
Also wouldn't it be enough to just use the way the origional browser (www) did it: images in popup windows and not inline?
(<a href="JavaScript:show('imagefile','credits?','wid
I believe it only means that a tumbnail is the eq. of a text quote...
What I cannot create, I do not understand
What about linking to a picture on another site, in which that other site is already breaking the copyright?
displaying pictures that have been "thumbnailed" on my site and once you download them you notice that they're really 200k? Is it still fair use if you "thumbnail" them instead of actually degrading the quality AND the size... or would just shrinking them be enough?
Oh god, that woman is John Romero!
Won't this also affect Babel Fish, when it frames a page after it translates it so you can click on a link and have it translated too?
Xesdeeni
Now, I can sue people who link to my eBay images, instead of just replacing them with goatse.cx's hello.gif.
- A.P.
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
I honestly didn't know, but google to the rescue: From the site, Federal Judicial Center History of the Federal Courts, we have
So the federal district system dates back as far as the Constitution itself. Early in the Republic, the Supreme Court justices also rode the circuit, so perhaps that's what the poster was remembering.
The Mongrel Dogs Who Teach
Yes, yes, stupid - I know. :D
I think the discussion may have missed both a novel aspect of the case (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 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:
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
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.
That is, What happens if I use a "thumbnail" sized image that is the real image, just specified to appear in a small area?
I can use a 1MB JPG image, and specify the html image size to be a 10x10 pixel image.
It appears as 10x10, but, in fact, the full image has been replicated.
How would the court's ruling stand against this?
So, it sounds like they are saying that a link to an image falls under the same copywrite as the image itself. Which would mean that you cant 'use' a link to an image without permission any more then you could 'use' the image itself without permission. I'm not sure that I like this becuase I'm sure that this could be used to stop hyperlinking without permission which would suck.
I've been working at the company in question, 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 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.
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.
h tml
Here, from the HTTP 1.1 RFC, 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.
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.
Remember, though, that because of the way that the US court system is organized, this ruling only applies to people who live in the 9th circuit -- California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands.
This ruling does not become the law of the land until it is reviewed by the US Supreme Court.
The ninth circuit has improved in recent years. Also, as one judge on the Ninth Circuit said: "they [the Supreme Court] can't reverse them all!"
Making something freely available and giving it away are different things. If I write a piece of code and say "you can use the code as long as you give me credit and don't use it for any purposes I don't like." I have made it freely available. If I say "here is a chunk of code, do with it what you will." I have given it away. If I don't say anything, full copyright protection is the default.
It is within the rights of someone to put their intelectual property somewhere that people can see it, yet still maintain control over how it is used. If someone else makes money from the use of that intellectual property they know it has value and it is not unreasonable to expect them to pay some sort of royalty.
The sound of an outdoor concert is freely available to the neighbors across the street, it does not mean they can record it and make a profit from the recording. The author of material retains all the rights to the material regardless of how it is distributed. You do not need to outline your restrictions before you distribute it.
Actually, quite a few sites are making money, but only those that manage themselves well. In other words, as a real business.
I used to write for a site that paid very well. However, they "restructured" their payments in the middle of my deal becuase they were not making money. As a result, I started my own site with some friends. We make money at www.sqlservercentral.com, but we can't pay anywhere near what some other sites pay. Of course, some of those are still "restructuring" because they are not making money.
I think many
When you limit the availability of a work, then you are absorbing the burden for providing access to that work.
More control requires more resources.
If you allow for mirroring and caching then the burden of hosting is distributed.
Thus copyrights create inefficiency.
This implies that copyrights can't scale because there is no easy way to distribute load dynamically based on demand.
The 9th circuit has earned a reputation as the most-overturned court in the U.S. Until this hits the Supreme Court (or is denied cert), don't take this as the final word.
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.
The purpose of copyright is to expand the public domain, NOT to control how infomation and public works are used. Copyright laws in the US were designed to offer a temporary franchise on publication of works at a time when publication itself was costly and required encouragement. The current expansion of copyright into a 75 year, effecutally permenant, franchise is an abomination especially in light of electronic publication costs. The author's intent has nothing to do with how I should think or express myself or use his material to do so. I will freely quote people I disagree with to show them up. It was never about the ability to force your will on others or to be able to make money forever off someone's "work" (both are equivalent, how is left as an exercise).
The callenge for lawmakers is to forge laws that continue to encourage publication without inflicting undue restrictions on use. The GPL exits because of undue restrictions that have been placed into current copyright law and it's strength is how abusive copyright laws are. If those abuses did not exist, the GPL would have no more force than any other more restrictive copyright. Your confusion is the reason copyright is so screwed up and is the greatest obstical lawmakers have.
Don't be misled. You will not be protected when _largeCorp rips you off (as you consider it). _largeCorp would more likely copy your image or what not to their own machine and dispense with the reference alltogether. _largeCorp will be able to hit you with a very large stick if you EVER try to use their content. A great example of that is the whole "for Dummies" fiasco where the publisher of the popular dead tree serries used copyright law to commondere a common english phrase. We can be sure of prior use and publication of the phrase, but the publisher sent out thousands of threatening emails to sites that used it. A lighter aproach to the situation is found in the excellent dispair.com trade mark parody of :-(
To summarize, copyright is a created right to encourage contributions to the public domain and should never be used to defeate the real right of free speech.
Friends don't help friends install M$ junk.
If it stops hotmail from framing and linking every thing that is linked from an e-mail, it'll make me very happy.
Saif
Is no one else glad to see important structural aspects of our physical world (such as binding legal judgements) start to seep into the virtual world? At least in the US and much of Europe, the framework for society is built with a significant dollop of legal precedent; in order to generate this legal precedent, we need to have judges relating existing laws to frontiers such as hyperlinking practices.
Without this kind of activity, the virtual world will remain the ghetto that it has become in the year following the dotcom crash. With it, the Internet has a chance of becoming the mainstream medium that it deserves to be. I don't expect the courts to get it all right the first time, but I know that they will converge on an acceptable standard over time.
42
Re-read the website you linked to, or better yet go up a level. Even better, I'll give you a direct link. The original "circuit courts" were abolished in 1912, and were replaced with the "circuit courts of appeals," which were established in 1891. These courts do not have original jurisdiction, only appellate jurisdiction. If I remember correctly from Rehnquist's book on the Supreme Court, the courts of appeals were established in order to limit the growing load on the Supreme Court (prior to the establishment of the appeals courts, the Supreme Court was the only court with appellate jurisdiction - appeals went straight from the district courts to the Supreme Court).
There are two key problems with your analogy:
1. The copy of the poster allows it to be viewed at a different location. This would be equivalent to making a copy of a JPEG and putting it on a different server. In the case at hand, the plaintiff's picture could only be viewed from the same URL as the plaintiff chose to display it at. All the defendant did was provide a different way of getting to the location at which the plaintiff decided to display his pictures. This is like viewing a Chicago Cubs game from one of those apartments that overlook the ballpark. If the Cubs don't like giving people free access to their games, they can relocate the ball park, or modify it so that the views are obstructed. They can't restrict how people use their own buildings.
2. Your painter removes the poster. The copy allows the poster to be viewed even after the painter has chosen to stop displaying it publicly. The plaintiff in this case did not attempt to remove the picture from his web site.
Making this annoying practice illegal is a Good Thing, IMHO. Of course, you can do away with the frames with the following code.
//-->
<SCRIPT language="javascript"><!--
if(parent.frames.length>0) {
top.location=document.URL;
}
</SCRIPT>
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?
That is all.
I don't see why this would be considered a copyright violation. Copyright is just that, the right to copy a "work". The image owner's site is the one producing the copy, and they presumably have that right. Now, inlining peoples images may be a little shady and even discourteous to the owner, but as many have pointed out it is fairly trivial to setup a server to restrict access to an image based on HTTP_REFERER, etc...
I wonder what the limit pixal size for a thumbnail would be?
... now that would be interesting
:)
god forbid they double the penalty for every 5 pixals over you are
especially if you 'ripped off' a 1600x1200 pixal desktop background from digitalblasphemy.com or something like that
although that guy is too kool to rip-off imo
Ken Dale Email: Protection on
will be as much fun as a Rave put on
by John Ashcroft and the DOJ.
Now, from user's point of view (which approximates judge's POV most likely), if you do see the whole image on a page, it IS ON THAT PAGE. Technical implementation is that due to linkage browser automatically fetches the image, and comes from another server. That is inconsequential for the user. Who cares? Programmers do, obviously, but for the user that image IS part of the page.
Thus, having a thumb-nailed image that links to the original page with the embedded image seems more fair use than 'embedding' the image.
And yes, I fully understand that from underlying tech's (and infrastructure's) perspective, difference isn't all that clear, far from it. But what matters is the context in which the image is used.
However, what I would consider more interesting is actually the _intention_ for linking to full-sized images. Thing is; if a casual user (or another artist etc) did the linking to mislead people, it would be easy to condemn the practice. But when a general purpose search engine does it, it's easier to defend the practice; especially since it's easier for anyone to understand that the search engine "didn't produce" the image, but found it from another site.
I like paying taxes. With them I buy civilization -- Oliver Wendell Holmes
It looks like sweet paranoid FUD continues to flow from the mouths of lawyers and the slashdot community... sigh
How many of you actually read the ~25 page pdf? Don't trust the summaries!!! Ack!
Anyways, my point is, they're not going to ban linking, in the traditional sense. They're not banning the use of thumbnails. Thumbnails were deemed to be fair use of the copyrighted material, due to sufficient transformation of the material in both form and intent of use. However what the judge has said is that inline linking of copyrighted content is a no-no; i.e. displaying works outside of the context of the copyright holders' intent is illegal. This is justified, IMHO.
The way I see it is analogous to television. Imagine that tv station WABC was rebroadcasting WXYZ's copyrighted content without their consent, taking out WXYZ's commericials and sticking in their own. This situation is no different. You've got a stream of information available on a publically accessible medium, which is being retransmitted by another entity. Try and tell me that this is not a violation of the law.
On the converse, if this decision does get reversed, could one not argue that I could retransmit major league baseball games without "express written consent", and instead go on "implied aural consent" since they've made it freely available to me?
sigs are for suckers
Can I take someone else's picture, enlarge it -- extrapolating pixels via these new fractal toolkits -- and post that? At this point, information is being added. Hmm... a better derative work?
What if I find a business that makes and sells professional thumbnails. Can I zoom it as well? Or do I not have to, because the it's already fair use by virture of being thumbnail size?
---
I lay claims to blank.gif which holds one transparent pixel. Anyone who wants to make a smaller thumbnail of that, feel free.
You missed the point entirely. But thanks for the stunningly original description of the "free as in beer" concept.
The whole point--and I don't know how to put this more clearly than the original post, maybe italics will help--is that all I am doing is directing you to go explicilty ask for your own copy from the original providers. If they choose to give it to you on your request, by responding to your browsers request for "http://joop.com/just_the_image.gif" instead of "http://joop.com/the_whole_page.html" then what exactly have I done wrong?
ever click on a link in an e-mail from within hotmail? Hotmail opens the link inside a frame (in a new window).
So I guess Microsoft will stop doing this immediately, right?
Yeah sure, and Office.net is gonna run on Mono!
A neat little property added to html to disable content-referrer so that people can't tell where people are inlining from.
It should be allowed...though I can see requiring that one also deep link to the original page.
I mean, hell, all you're handing out to the user is a piece of information denoting where the original image is.
Restricting information flow is just dumb.
in the hotly contested race between (now former) Senator Slade Gorton and (now Sen.) Maria Cantwell.
Gorton had a fairly goofy picture of himself buried in his campaign website. Cantwell's web site deep linked to it from their front page as part of a humourous attack on his environmental record.
Gorton's campaign manager didn't really understand the issue and first accused Cantwell's campaign of copyright infringement and, later, "hacking" Gorton's website. Fortunately for Gorton, his tech people understood what was going on much better and swapped out the goofy pic with a different pic...
then when people went to Cantwell's website, they were greeted with a big "Vote for Slade Gorton"-style picture. Cantwell's people quickly stopped deep linking.
Whole thing played itself out in a day and no lawsuits were filed.
In intellectual property rights cases (like copyright violations), the plaintiff does not have to prove damages. All he has to prove is 1) he owns the work, and 2) you used it without his permission. If he's proven those two points, he's won.
... now for the practicalities. If you, an individual, rip off an image and post it on your personal home page, you will probably get a letter telling you to remove it. If you rip off a bunch of images and create a training program that you sell to schools, for example, you will probably get a bill for the use of the images. Again, the owner gets to set the amount because 1) he owns the work, and 2) you didn't negotiate the royalty payment ahead of time. If you don't pay his bill, you will get sued for copyright violation. If a big company rips off the same bunch of images to make the same CD training program, they'll probably get hit with a lawsuit INSTEAD of a bill.
Fines for copyright violations are "up to" $150,000 per violation (i.e., per image). I put "up to" in quotes because the law sets a limit, not a fixed amount. The catch is that the owner/plaintiff gets to set the amount because 1) he owns the work, and 2) he's filed the suit.
That's the law
Practically speaking, it depends on who rips off the work and what they use it for. Legally speaking, the "ripper" can get sued by the "ripee" for $150K per image. Wax philosophical about free art on the Internet if you want, but the law doesn't see it that way.
What you are saying is that there are "special" URLs, ie ones that point to images, which are inherently pointing to things which are not published to the public and "normal" URLs, pointing to HTML, which constitute the intended published context of an item. This is arbitrary and false (at the same time!).
Since it is possible, as even the trolls have pointed out, to prevent deep linking to images quite easily, thereby actually making this distinction non-arbitrary, it should be assumed that an image not so protected is available for linking.
The existance of unused locks and keep-out signs in an otherwise public context denies any claim of trespass.
Apart from anything else, how many images are there on the web which were taken with a specific HTML page in mind? Very few when talking about photographs. So, what makes a photograph less of a "content item" than the piece of text it may at a later date find itself dropped into? Nothing, and if you can link to one then you can link to both.
TWW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
You're wrong. The court states that there was no copying for the inline linking, but that it violated another copyright protection - the right to contol public display. they displayed the full-sized images within their frames.
System Caching of Copyrighted Materials
17 U.S.C. 512(b) (1998)
This safe harbor seeks to allow service providers some ability to "cache," or temporarily store, popular materials in order to improve performance for end users and to reduce network traffic. At the same time it protects the ability of the originator of the material to set limits on the frequency or mode of caching.
This defense has several specific requirements. Among them, the OSP must transmit the material without modifying its content; comply with rules concerning refreshing, reloading or other updating of the cached material; and limit access to only those users who have met the conditions placed on the material by the originator e.g., passwords or fees.
This ruling appears a good model for applying to the music domain. Highly compressed music (
So you'd legally be able to try before you buy at last.
Assume that website.com lifts an image of a copyrighted 100 x 100 .ico from another website, and hosts the image on its site in its full size. However, they read this ruling and they decide to size the html to render the image as a really tiny thumbnail at 50 x 50. Then Google or Arriba scrawls the website.com server, and creates a link to the stolen image and displays the image 100 x 105 pixels. They have displayed the image without transformation and without authorization. And website.com is is laible for infringement because they copied the image, but according to the ruling, their use was a fiar use because it was transformative. I know it is theoretical, but it illustrates the application of this ruling.
The inline linking arguement was that there was no copying, but there was unauthorized public display. The same analogy would be a movie director likes your window display with the products, and uses your window as a backdrop to a scene. That would be an unauthorized display.
There are many areas of law where linking can get you into ttrouble. Defamation, trademark, and copyright law is all involved with linking law. Here is a good quick link to the discussion: http://www.nolo.com/lawcenter/ency/article.cfm/obj ectID/C13F7E6B-B05E-43DF-80D62B635DF9DD9F
It might help to actually read the opinion first. There are several enumerated protections afforded to copyright owners, of which the right to control copying is only one. Public display is another, and the court held that the inline link was a form of unauthorized public display.
If you look at the opinion, Arriba got busted for unauthorized public display. The court said that "by allowing the public to view Kelly's copyrighted works while visiting Arriba's website, Arriba created a public display of Kelly's works." I think that a popup is still a display caused by the infringer.
Secondly, I'm not so sure that non-commercial material is less protectable, if I understand your argument.
1. the purpose and character of the use - the court didn't discuss the commerical aspects of KElly's work here, but rather that users wouldn't have to go to his site if they could find them on Arriba. Also, Arriba didn't add any new expression to Kelly's work, so it wasn't transformative.
2. the nature of the copyrighted work - once again, the court didn't discuss commerce, but rather that the images were wholly copyrighted and used in entirity.
3. the amount and substantiality of the portion used - here the court said that since they used the entire portion, there was no fair use here. They didn't mention commerce.
4. the effect of the use upon the potential market for or value of the copyrighted work. Here, the court did discuss the commerical aspect, but they also didn't like the fact that there was no need to go to Kelly's site. They could find that non-commercial websites still need people to go to their site - maybe for charity pitches, etc...
Even a non-commercial owner would probably win 3.5 out of 4 in the fair use test.
1.A copyright is an original expression in a fixed tangible medium. Copyright law provides the right of the owner to control copying and display. Fine. How do the Cubs get a copyright to control who can view their ballgames?
2. The plaintiff has the RIGHT to determine HOW and WHERE his work is displayed. Right or wrong, that's the law. So what if the plaintiff didn't attempt to remove the picture. It doesn't make sense.
Hmmh. I must honestly admit I don't quite understand what you are saying here..
What you are saying is that there are "special" URLs, ie ones that point to images, which are inherently pointing to things which are not published to the public and "normal" URLs, pointing to HTML, which constitute the intended published context of an item. This is arbitrary and false (at the same time!).
No. I'm not saying anything like that. I'm saying I (assuming I was a judge) don't care even about the fact that we are talking about URL-linked items. I'd be more interested in what is the end result; what browser display and how that looks like; what is the impression and intention of the page in question.
You are still thinking in technical terms, how things are done instead of what is done. I certainly understand how similar (identical) different methods are from HTML viewpoint; hyper-linking as usual. About the only difference is that it might be logical to consider html-pages to be 'first class' web content, and anything else secondary linked-to material; whether that makes sense or not can be argued to no end.
I like paying taxes. With them I buy civilization -- Oliver Wendell Holmes
Also being covered in photo.net (which is interested in the photographer's point of view on copyright.)
Interestingly no-one there thinks linking is illegal. YMMV & IANAL!
photo.net discussion
Case law have some info here (pdf)
-- Butlerian Jihad NOW!
What is being done is that the image is published by giving it a URL. You are saying that the use of that URL is only allowed in some circumstances, ie in the context of another URL which points to a page of HTML or whatever.
I am also saying that not understanding what a URL is (the method of publishing material on the Internet) is no position to argue the in's and out's of copyright law. At a technical level (the "how") copyright does not apply here as nothing is copied by the defendant, but also the litigant has actually, definitely, and in clear language, made the image available for linking by giving it a publicly accessable URL which is an entirely optional step which they chose (perhaps unwittingly) to take.
If I own a field surrounded by common land and put no markers up to tell people that this normal looking patch of grass (the image URL) is different from all the other grass (other URL's) I don't see how any court could justify a case of trespass against someone that "uses" my land by walking over it.
TWW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
this sucks... get the picture?!