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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.'"
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.
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.
Two cock in my pussy! It feel so good!
No, that one settled and Ticketmaster lost a similar suit against Tickets.com. The issue was "deep linking" rather than framing, but the links were held to be neither a copyright infringement nor a trespass.
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
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!
Two sites which are sustained by ads but are not porn:
ShackNews
Fuckedcompany
There are others.
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.
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.
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
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.
i-name =twylite [http://public.xdi.org/=twylite], see idcommons.net
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.
To be more specific, since I work at the company in question, the issue that the judge ruled against us on was poping up the full-size image *if*, and only *if*, the user clicked on the thumbnail. Not only did we pop up the full-sized image, we popped up the original page that the image was found on, thus driving traffic to that persons site. The thumbnails are stored on our server, so unless the user actually clicked on the image, it would use no bandwidth of his or any other webmasters site.
You apparently did not read the ruling. Arriba also linked to the photographer's web site on the larger images. However, the ruling stated that there would be no need for parties interested in the works to visit the photographer's site if the full-size images were made available elsewhere, depriving the photogapher of his right to distributiuonunder current copyright laws. Google image search is just as liable were this ruling to be applied there as well. The courts were inessence saying that thumbnails were a legitimate fair use of the work but linking and framing the full-size images was not fair use and infringed upon the copyrights of the photographer.
All in all this was a very fair ruling. There is no need for image search engines to display the full-size image as they could just as easily link to the copyright holder's site while only displaying a thumbnail on their own site.
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.