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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.'"
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
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.
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Oregon
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
As long as we non-USA-ians don't travel to the (police state) USA I think we are safe, and with the DMCA in effect that is not something we can do anyway - as we still reverse engineer daily in our businesses.
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.
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.
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"?
Since most people and companies behave with civility, defining the rules takes care of 90% of the problem. Yes, there are Enrons and Microsofts which bend rules at every corner. But most people are decent.
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?
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.
Arriba used Kelly's original work and displayed it on an Arriba site.
No, images are displayed by the browser, not the "site".
All that Arriba did was construct an HTML command to request that Kelly's webserver give the image to the end user's browser. Kelly's webserver said "yes" to the request with the full knowledge of the refering page. The fact that Kelly doesn't check the refering html page or use some other programmatic control means that Kelly has placed his image in a format where the HTML standard allows framing. The court today said essentially that these acts mean nothing. That's crap -- if Kelly didn't want to expose his image to the full capabilities of HTML, he should have used some other technology.