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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.
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
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".
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.
... 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
Why is that bad? Why is that "against a free and open Internet"? That protects copyright. That's ALL. A photograph is copyright by the original author. So is a written work. So is source code. 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. This law protects the originators of work. It gives the author the ability to control and decide how that work will be used.
Anyone can still create excerpts of works for research, indexing and review purposes such as short links to stories, quotes of larger works, and now, thumbnails. This law extends the long-respected and venerated copyright law into the realm of digital images, and in what I personally feel is a responsible and very fair way.
For once, the law appears to be creating and extending a statute by case law in a fair way, in line with the intention of the original law, and it's getting slagged by some of the people it protects. How disappointing.
Try to weigh the rights of an author to own their labour vs. a free for all. This law protects and extends the right of each of us to create something, and either give it away, or sell it, or distribute it in some other novel way. Without that, anyone can take anything any of us does and use it in any way they wish, without our permission, and without compensation, and most importantly, without any concerns as to the intent for the use of the work originally.
Thus endeth the rant. Just think.
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
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.
What happens if someone has really big thumbs?
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.
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!
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"?
They didn't specify the size of the thumbnail, did they ? What if I happen to choose 1600x1200 as the most suitable resolution for my thumbnails ?
If you've ever "accidentally" been directed to a "leisure" site then, like me, you were probably convinced that only thumbnail images exist.
This case is a landmark for me because it provides evidence that non-thumbnail pr0n is actually out there somewhere.
:)
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.
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?
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
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
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.
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.
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.
Dude, if someone is dumb enough to go to the trouble of photocopying an entire John Grisham novel, they've already got trouble. Double that for anything by Tom Clancy. Do these guys get paid by the pound, or what?
That is all.