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.'"

Comments

In other words

[Restil]

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

Re:In other words

[MaxVlast]

Not at all. Books in libraries are available with an openly specified protocol, in a public place, for anyone to access. They even provide photocopiers. If I go and photocopy the latest John Grisham novel and put it in my library, you bet I'm risking trouble.

Re:In other words

[the_2nd_coming]

a better analogy would be:

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

I however do think it would be nice if folks would just lighten up and only get pissy if they are not sighted as the creater of the work (when there is no wide spread distrobution with no compenation going on)

Re:In other words

[acceleriter]

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

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

Executive summary: if you don't want people to look at it except on your terms, publish a book, not a web site.

Re:In other words

[thing12]

No, the problem was that Ditto/Arriba used to link the full size image inline (they don't anymore). So other than the link below it you didn't have the original context. There's nothing wrong with the way google is doing things (framing the entire page with the image in context). The courts are simply saying that it's wrong to inline images from other servers without permission.

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

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

Re:In other words

[Eccles]

You are right. For instance, you have a front door that is widely left unlocked because it's an open standard and I can easily just learn how to unlock it.

Nonsense analogy.

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

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

But the default for web content is you can get what you can URL. Given that there are ways to indicate that you don't want that default, that's what should be done -- not a change to that default assumption.

This is absurd.

[1/137]

This is absurd.

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

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

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

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

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

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

Re:So what is a thumbnail defined as?

[dinotrac]

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

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

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