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

[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

[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

[Twylite]

It would seem that the terminology being used is somewhat confusing. "Linking" appears to indicate a direct URL reference in (say) an IMG tag, rather than a "link to a page" (A tag).

Essentially there is no problem with providing a link to the original page, where the image will be displayed in context, but pulling the full image out of context is an issue.

From previous legal challanges and discussions, it would seem that "framing" is much less clearly defined. Providing a banner which indicates that you are supplying content as a proxy (or similar circumstance) appears to be okay, but having a site embed content from another site (say in another frame) where there is no indication that the content is not yours, would be considered framing.

This tends to happen most often when the site with the content has frames, and you have frames (in both cases, HTML frames), and you can link directly to one of their frames without the rest being displayed.

So what is a thumbnail defined as?

[CaptCanuk]

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.

This is not a troll...

[catsidhe]

... 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?

ninth court? expect a reversal

[thelaw]

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

Re:This is absurd.

[Bonker]

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

Mod this guy up.

I worked for an artist one time on a website to sell nice framed prints of his artwork.

The trick was that the guy didn't want to put any pictures of his art on the website.

I told him very clearly and simply that he had two options. He could choose to give anyone who wanted it tiny versions of the art for free... a 1024x768 jpeg of any given piece of large framed art probably suffers about 90% resolution loss... and hope that the people who liked them would buy the full-sized wall-hangers, or he could not put them on his website and expect people to buy works of art they couldn't see.

I convinced him after a little while, and he made a few thousand dollars selling stuff. Then one of his relatives convinced him that people were stealing from him by downloading the images of the website, so he took most of them down. Now he doesn't make much money any more.

I just checked the site again, and a few of the pictures are back up... at a greatly reduced filesize. I bet he starts making money again.