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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.'"
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".
... 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
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.
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.
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"
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