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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.
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.
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".
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
... 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
Right. But someone's confused, and perhaps it's me: The article seems to indicate that the practice over at Google Image Search -- thumbnails with links to original images at original sites -- is fine. Then how can the lawyer at the end of the article say they're "basically going to do away with linking or framing without permission"? Is it the framing (which Google does) that's the problem? If so, the article doesn't make that clear. Time to do some homework and read the court decision, I guess...
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.
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?
So what you're saying is that if I want my copyrighted book protected, then I shouldn't place copies in libraries? Is that right? I mean, libraries are public places. Or, if I publish a magazine full of copyrighted pictures, then someone has the right to scan them into their computer and post them on the Net? Or if you post some interesting content on your Web site, I can come in and take that content, transfer it to my site, represent it as being mine, and make money off it? Just wait until someone does one of these things to you, then you can decide who the dumbass really is.
That light you see at the end of the tunnel might be from an oncoming train.
I see no difference between this and the argument of spammers that you want spam by having an e-mail address. If it doesn't matter to you that the costs are borne by other people, and that using a technology in one way grantsd permission to use it in every way, then you have no problem with spam.
After all, you put your e-mail address, an openly specified protocol, on a public network, for anyone to access. It's just plain absurd to whine that people dare to actually use the methods in place to send you commercial e-mail.
I'm sure the Direct Marketing Association is glad to hear that you've opted in to their grand sche^H^H^H^Hpla^H^H^Hopportunity.
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.
In fact, copyright and license is all that's stopping a popular enemy of many of the readers of this site from running off with a lot of source code and using it in proprietary products.
Umm, if there were no copyright law, there wouldn't be any proprietary products in the first place.
Being against this ruling and against copyright law is not hypocritical. Being for the ruling and against copyright law is. (Being against copyright law and for the GPL, except as the lesser of many evils, also is).
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.
What is thumbnail? Will 788 x 598 thumbnail of a 800 x 600 go? How would they decide?
<^>_<(ô ô)>_<^>
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.
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
Technically you may be right. But that's not the point (IMHO). It's about the user's perception. If you downloaded a copyrighted image from my site and put it on your site, that would be illegal copyright infringment (whether you think it should be or not). Linking to the original image on my site from your site looks identical to the user - how can they tell without reading the html what you have done?? Therefore the end result is the same (the user thinks you have something to do with the image, that you owned or created it) when in fact you did not.
---- Den ene knappen er powerknapp, den andre er Bender voice knapp "Bite My Shiny Metal Ass"
What about this interpretation:
imagine that JoeBloe provides a web page with embedded images. He has a copyright on the whole document.
Now, IIUC fair use rights, I can re-use *portions* of his copyrighted document, let's say.. an image within that document instead of a quoted paragraph of text.
Let's say also that I mention in the IMG's ALT tag "this image (c)2001 JoeBloe".
The image would still appear in the middle of *my* article/web page/whatever, but would be properly (in a legal sense) quoted, right ?
And it's irrelevant that (quote from another comment) "people could see Kelly's images without knowing they came from Kelly's site" (emphasis added), the important point is whether or not the quoter provides information on the quoted part's copyright owner - i.e I quote BillG's "the road ahead" and provide copyright info in footnotes, readers could read my text but not the footnotes (and by doing so not knowing a quote came from BillG's book) and it's still not a copyright's violation, right ? So the user's perception is irrelevant, because the user can be wrong in assuming a quote is not attributed.
Finally, it could be argued that a web page with external links is only a kind of recipe to build a document. I provide my audience with the recipe, but it's still the readers themselves (via their browser) that will build the document, so how could I be responsible for the actions of others ?
How is this different than, say, a recipe to build a thermonuclear bomb where I tell you, among other things, on which US military base to go to get *free* radioactive material (let's assume this exists, ok?) and then you follow the recipe, get your plutonium, build a bomb, and I am charged with stealing or trafficking radioactive material ?
Anyway, just my "IANAL"'s 0.02 cents...
--
Nicson
The condition upon which God hath given liberty to man is eternal vigilance
- John Philpot Curran
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"
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
You don't understand the problem.
If I'm on a hosting service, I pay a monthly bandwidth fee. I'm putting stuff on the web so that people can go to my site and read it, and enjoy it *there*, on *my* site. And, I can track usage, and decide whether I want to (or can afford to) buy new bandwidth as usage goes up. Plus, I can use my usage stats to get funding for my site (yes, usually this means ads).
Now, when Joe Dickhead links to part of my site, using my images for instance, he's running up bandwidth fees for me, which I have to pay for. This is what makes Joe Dickhead a DICKHEAD. He doesn't have to pay for that bandwidth -- I DO. Hence, this is stealing, because it takes money from my pocket to pay for a resource Joe Dickhead wants to use. This clearly fucks me over.
Even worse, if Joe's site is very popular, I can get "Slashdotted" out of existence, which is more or less a DOS attack. I don't know if my web logs would show where the linking is coming from (I suspect they would not; I don't think REFERER is logged for images, for instance, is it? Does anyone know?) but if I were to find out that it was Joe who slashdotted me, well, believe me, I'd be over Joes house applying a clue-by-four before you could say "Ex Marines Have Tempers".
The REAL problem, here, kids, is that most of the jackasses populating the internet today are suffering from free lunch delusions. They think that just because they can, they can take whatever they want and do whatever they want with it. In Real Life(tm), Copyright protection extends to everything on the web just as it does in real life. And, misappropriation is illegal, no matter what your methodology is. So, every no-talent hack who rips off another website is legally liable if he gets caught, plain and simple. DEAL WITH IT.