Slashdot Mirror
9th Circuit Court Finds 'Thumbnailing' Fair Use
mark_wilkins writes "A photographer named Leslie Kelly had sued Arriba Soft Corporation for infringing his copyrights to photos when they made thumbnails of his pictures and stored them in a public image search engine. Today the federal 9th Circuit Court of Appeals affirmed the district court's ruling that making these thumbnail copies of images for the search engine was 'fair use.' Since the applicability of fair-use defenses to copyright infringement touches on all kinds of common uses of the Internet as well as rulemaking related to the scope of the DMCA, this decision will probably have an effect on the discussion. (Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)" Note that the court also reversed in part the lower court's ruling, specifically saying that the lower court should not have ruled on "whether the display of the larger image is a violation of Kelly's exclusive right to publically display his works."
Hopefully the RIAA wont object to me distributing thumbnails of music as MP3's
One small step for law, one giant leap for freedom!
Leslie Kelly.
Poor guy. He's got *two* girls names.
Makes that poor schmuck Sue sound lucky.
Thumbnailing???
Whoa, DON'T GO THERE, GIRLFRIEND!!!
Lameness filter encountered. Post aborted!
Reason: Don't use so many caps. It's like YELLING.
When it is a thumbnail :O
This should apply to other similar types of fair use -- for example, allowing snippets of reduced-rate MP3's on an online music store, or expanding Amazon's practice of sample pages -- as well.
Does this mean that I can legally share very small versions of pop songs? Like maybe, half a verse and the chorus?
Or does it mean I can legally share the same songs if the volume is very low?
Inquiring minds want to know!
best web host ever
This is an interesting ruling, but I think the fact that it's not "binding precedent," as the teaser called it, could be a problem. If a higher court overturns this ruling then it's a huge hit to those who need or take advantage of the "Fair Use" exemptions in copyright law. As it stands now though it's a victory for the fair use camp.
And still todays panels of judges have no idea about technology at all.
Not that I disagee, I'm just saying you can get a sense of the confusion.
..There's a-dooin's a-transpirin'
So what actually constitutes as a thumbnail? A lower quality version of an original source? This could apply to music as well, since a low bitrate mp3 is a poorer quality version of the original raw cda. In terms of electronic use, all data comes down to 1s and 0s. Does this ruling apply to other forms of electronic duplication like music, or is imagery a whole different can?
don't get your hopes up. the 9th circuit is the most often overturned court in the federal system. nothing is settled with this until the supreme court makes a case of it.
eric
Yes, it does have an effect. The effect is that basically fair use applies to corporations, but not to the private citizens.
When a private citizen sues a corporation for copyright infringement, it's fair use. When a corporation sues a private citizen, it's piracy.
Warning: Opinions known to be heavily biased.
When asked for an explanation of their decision, the judges declined to comment, instead choosing to take turns breathing heavily into the phone.
Sadly, 'fingerbanging' is still not fair use...
"Faith: Belief without evidence in what is told by one who speaks without knowledge, of things without parallel." - A.B.
wow, a (real) fair use ruling.
Amazing, yet another judge who understands the meaning of Fair Use...
*Hey judge, run for President - I'll vote for ya* (grin)
Would it be fair use to "thumbnail" a song, by using a low bitrate mp3 sampling?
Just when is "thumbnailing" thumbnailing? What if I scale an image down 1%? 50%?
While not binding, this is kinda interesting.
Can I get a, "HEY-YO!"??
Google will go a step further and remove the location of your image as well as the thumbnail of your image from their image search database if you request it. The email is dmca-images'AT'google'DOT'com
Remove an image from Google's Image Search
I wonder if they will consider changing that policy now?
Whenever the offence inspires less horror than the punishment, the rigour of penal law is obliged to give way...
I said exactly this last time /. posted this story, and now I've actually automated similar systems, so I'll repeat it more loudly this time. OK Mr. Kelly, are you listening?
:(
watermark your images
You can create yourself an action in Photoshop, or there's at least two very good free software packages that can do the same thing (Gimp and ImageMagick). If you don't want the whole world grabbing your images,
don't publish them on the web
at least, not without putting some kind of protection in front of them.
There are well known solutions to this guys problem, and he choses the courts?! I guess that's really the American way
std::disclaimer<std::legalese> sig=new std::disclaimer; sig->dump(); delete sig;
First the supreme court says it's okay to cornhole, now the 9th court says it's okay to thumbnail! Now all we need is to get some rulings on cornnailing and thumbholing and we'll be all spiffy jiffy!!
great, so in that mind set i'll take audio cd tracks, rip them to mp3 (compression makes em smaller) and be able to legally let ppl download them.
muhahahah
mini me listening to mini music and looking at a thumbnail (.) look real close its all in the dot
Was this a website the author put his pictures on? Why didn't he control access? Sounds to me like he encouraged fair use.
I couldn't read the pdf, so I didn't read the facts.
Isn't the 9th circuit the court that said that the pledge of aliegence was unconstitutional?
This is the court that can't see past the end of its nose.
I hope the photographer wins in the appeals.
Oh great. Another ruling from the most overturned appellate court ever.
</fat_comic_book_guy_from_the_simpsons>
A programmer is a machine for converting coffee into code.
They did inded say that the lower court should not have ruled on this matter. Which means that it hasn't been decided by the court. Ie - thumbnail are ok, inline linking to an image on another site may or may not be ok, and we won't know until a court case is brought.
ok heres my 2 and a half cents...
When I was working at Kinkos we weren't allowed to make copies of pictures from books because the photographs in them were copyrighted. (now whether or not YOU went into a Kinkos and did this I don't care i'm just telling you a FACT as a ex-employee this is the LAW)
However, there are exceptions to this. 1 if it is for Educational use and 2 anyone can make a copy of the image as long as it was at least 90% smaller or 110% larger than the original (somewhere around there it had to be smaller or larger basically.)
Therefore it would make sense TO ME that if you are creating thumbnails of a copyrighted work AND linking to the original page or image then that should be allowed, since I would put them in the same category. (images and pictures that is.)
Ave Molech Setting
Any court ruling that footnotes Dr Seuss must be good! (see page 8 of the pdf document)
I'm not sure why the poster claims this opinion does not have precedential value. The 9th Circuit is an appellate court. Circuit opinions are normally decided by 3 justices. En banc is unusual. Accordingly, this opinion should be binding on all federal district (trial) courts in the 9th Circuit. This decision is not binding on any of the other circuits, but would be persuasive authority. I note that the opinion was withdrawn and then refiled on July 7, 2003 to moot a request for rehearing. The withdrawn opinion is not binding (since it was withdrawn), but the refiled and identical opinion should be binding.
I see a difference between the original and artistic aspect when comparing music and picture. In the case of music, art is created by writing the melody and the lyrics. You cannot really degrade the quality of those two if you create an inferior copy. All you'd do is degrading the quality of the sound, but the music remains the same. Hell, you cannot even release the same song yourself without permission of the original writers.
With pictures, the situation is different. Every photographer will tell you that while composition is extremely important, most of the work goes to achieve technological perfection. That's why photographers are able to take 50 or more pictures of the same composition - to achieve this perfection. However, that perfection is lost once you degrade the quality of the picture. What a thumbnail does is to get across the information of what you see. It fails, however, to get across the beauty of that particular composition.
That's just my $0.02...
In 1991's Biz Markie vs. Gilbert O'Sullivan debacle, Markie lost his case and O'Sullivan was awarded punitive damages.
In the United States, any sampling is considered a violation of copyright.
--
the strongest word is still the word "free"
(Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)"
What the hell does that mean? Either it was decided by an appeals court and is valid for precendent in that area or it wasn't decided.
There's some confusion here -- let's separate "binding" from "precent". Anything can be a precedent. Binding is another matter.
Circuit courts are a strange system. Each of the circuits covers several states. What a particular circuit rules is always binding in that circuit. By "binding", this means that lower courts (namely, federal district courts) should consider that ruling the "law of the land" when they make their decisions.
What this means is that the law of the land in one circuit (and therefore in one state) may different from that in another. A law found constitutional in one state may be unconstitutional in another. Only the Supreme Court can resolve these differences, and although the S.C. turns down far more cases than it hears, it almost never turns down a case that will resolve a conflict among circuits. And of course, rulings by the S.C. are always binding on all federal courts.
The "only a three judge panel" part is confusing. Usually, when a case is heard in Circuit Court, three judges (from the 10 or 15 or so in that circuit) will hear the case, and the "best out of three" wins. In some rare cases, the entire circuit will sit "in panel" to hear a case -- often if they want to review the finding of a three judge panel that seems out of whack. This is rare. But when the Circuit speaks as a whole in this way, that precent takes precedence over any previous three-panel decision in the circuit in the same case.
As I said, three judge panels are the norm. Their findings are perfect "binding" within the circuit.
Anybody who actually is a lawyer (or just knows better) can feel free to correct me -- I'm in a hurry and didn't have a chance to double-check the finer points, but in gross, this is how it works.
Then it should be legal for me to download music in compressed form!
Actually, I think that is a great analogy -- mp3 is to audio as thumbnails are to images.
After all, an mp3 is a lower quality audio file resulting in a smaller file size.
The historically inclined might want to read Slashdot's previous coverage of a very similiar article.
:)
But... surprisingly... not identical
False. I can't believe this is in the story header, it should be changed immediately. Appellate courts like the 9th Circuit generate binding precedent every time they publish an opinion (some other appellate courts also generate precedent through unpublished opinions).
Sure, it's on the lowest rung of binding precedent. It can be overruled by an en banc panel, or it can be overruled by the US Supreme Court. But it's still certainly can be cited in other cases.
Not to give any credibility to this site, but
We have to distinguish between published and unpublished opinions in some districts, but the point basically stands.
The submission incorrectly states that because this case was decided by a three-judge panel, it is not binding precedent. The U.S. Courts of Appeal typically hear cases in three judge panels. Very rarely, all of the judges in a particuar circuit court will hear a case "en banc." While the court sitting en banc can overturn a panel decision, the panel decision is binding precedent (whatever that means, especially in the murky area of fair use) unless and until it is overturned by 9th circiut sitting en banc, or by the U.S. Supreme Court. Of course, other Circuit Courts (e.g. the 10th circuit, the 6th Circuit, etc.) are not bound to follow precedents from their sister circuits, though they often do.
IAAL, but this post is not intended to constitute legal advice. If you need advice, see your lawyer, not Slashdot.
"The dinosaurs died because they didn't have a space program." - Niven
I admit it, I know I'm not suppossed to but... I enjoy thumbnails!
I think they're great even when some of the glory is missing.
---
consider IAAM (I am a moron)
ôó
Incorrect. That's the first time I've heard that 3 judges on an Appellate court can't make precedent. If the poster was right about that, we'd have no precedent virtually.
The only federal courts that have 9 judges regularly is the Supreme Court. Occasionally there will be a 9 judge panel in a federal circuit appeals court, that is termed "en banc." That is for rare situations, but 3 judges is the norm at the federal level and many states, including my state Illinois.
So all those preview images I got from Corbis and Photodisc to use as icons are valid? Wahey!!!
Just so long as the 9th Circuit doesn't grant a rehearing en banc, this is a "binding precident" in the 9th Circuit.
If the 9th does hear the case en banc (meaning at least 11 judges) and they uphold the decision then it is still binding precident in the 9th circuit.
If the U.S. Supreme Court takes cert. on the case (which can happen if one of the parties petitions for a rehearing en banc and it is denied or they lose the rehearing and still have money to spend and petition the Supremes for Cert. and they grant cert.) and the Supremes uphold the fair use holding, THEN IT IS BINDING PRECIDENT IN EVERY CIRCUIT IN THE U.S.
Only about as costly as a small war....
In my last major appeal in the 8th Circuit the quoted cost was $30k for the trial transcript (from a 1 week long trial). The 8th Cir. granted IFP status to my client and we got a copy of the transcript free, but still had to copy, number and bind a copy for each judge and the opposing side (still about $3k at Kinkos (tm)).
It said forcing kids to say it was unconstitutional. That part is basic freedom of thought and should be uncontroversial. The more difficult portion is their decision that the schools' way of allowing kids to skip saying it amounted to coersion and was also unconstitutional.
In any case, I suggest if you really do give a damn about such issues, you educate yourself about them a bit more.
So when I start using Thumbnails of Corporate Logo's and Trademarks, can I hide behind this firewall and plead fair use?
0110100100100000011000010110110100100000011000100
In short, how many of our laws affect out other laws in unforseen ways?
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
The summary states as follows: "Note that this case was decided by a 3-judge panel and thus isn't binding precedent." Be wary what non-lawyers say. Hopefully noone in a position of authority at a tech company would rely on such a statement without asking a lawyer because this statement is incorrect. The decision is marked as "published" and appears to be per curiam (meaning all three judges on the panel concurred in the opinion). This decision therefore currently should be binding precedent within the jurisdiction of the 9th Circuit, including the rather large and important state of California. Given that cases are rarely accepted for appeal by the US Supreme Court (assuming it is even appealed) and there probably is no disagreement in another Circuit on thumbails, this decision is likely to remain binding in the 9th Circuit and be useful as persuasive authority in other Circuits around the country. Now, it is true that the losing party could ask for a rehearing en banc by the full 9th Circuit before seeking an appeal to the US Supreme Court. However, such requests are rarely granted and this decision would be binding unless and until stayed by this 3 judge panel or reversed by the entire 9th Circuit. (This is not meant as a formal legal analysis, just a general explanation of how these things typically work). Regards.
Would be if the music that P-Diddy samples could be considered derrivative work. Maybe a parody? Call it a rant but for the recording industry to blast people about piracy while "artists" take work from other records borderlines hypocrisy.
If I had an album by The Police, all the Puffy remixes should be nothing but service packs, if that.
Of course thumbnailing might be the graphical equivalent of sampling. However, I've never seen anyone gain immense profits from thumbnail pictures.
Note that this case was decided by a 3-judge panel and thus isn't binding precedent.
Yes it is, for district courts within the circuit that rendered the decision (the 9th, according to the original posting). It is not binding on district courts in other circuits.
The decision is binding precedent in the 9th Circuit (many Western states, including California), unless more judges, or the Supreme Court, get together to overrule it.
See Roundy v. Commissioner, 122 F.3d 835, 837 (9th Cir. 1997) ("A three-judge panel is bound by a prior judgment of this court unless the case is taken en banc and the prior decision is overruled.")
(IAAL, but - disclaimer oblige - this is not legal advice)
You might have filed a motion to submit the transcript on CD rather than by paper copy and saved a few trees and $3,000. Many courts will now allow this, and the 2nd Circuit allowed us to do this recently. In fact, our brief was submitted on CD with hyperlinks to cases and exhibits. The courts (and particulary young law clerks helping courts) are getting very smart about such things and have been very reasonable in my experience.
note that the 9th Circuit Court is THE most overturned court in the country...
it's always something like "not following established laws..." or something along those lines
"A photographer named Leslie Kelly had sued Arriba Soft Corporation for infringing his copyrights to photos when they made thumbnails of his pictures and stored them in a public image search engine"
If you dont want strangers to see your images then the internet is a pretty stupid place to keep them. :)
Do you need a website upgrade?
Nay. The logic is more analogous to sharing MP3s because their information content has been reduced compared to the original, like withthe thumbnail pics.
open (SIG, "</dev/zero"); $sig = <SIG>; close SIG;
So... does that mean a bunch of different people could put up 'thumbnail segments' of mp3s and you just need to collect the right files to play the whole song?
Heh I'm only being half-sarcastic here.
Yeah but what about thumbnails of thumbnails? Is that ok to do as well? I gots to know!
I've seen this several times, and based on court cases it seems this is true: any sampling is a copyright violation. But why is that so? Why isn't excerpting a 5-second portion of a song fair use, just like excerpting a 1-paragraph portion of a book is?
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
1 distribute "thumbnailed" music under fair use
2 ??
3 profit (as defined by the RIAA, profit by not having lost the money you WOULD have spent on that $15 cd right?)
fuck the riaa today
A lot of people have been asking how we can possibly encode audio in a way that's legal now that this ruling has been passed. I suggest this: Encode it at 256Kbps Ogg Vorbis. You can barely discern the song's melody and the like, but it is small enough to be transmitted over the Internet.
If the RIAA is crazy enough to sue, any court judge, after listening to a sample of the Vorbis clip, will know that it is the audio equivalent of a thumbnail.
I wonder if this is good or bad for the porn industry.
But we don't make the laws, we just get our asses handed to us when we break them.
Land of the Free, indeed.
--
the strongest word is still the word "free"
The poster's absolutely correct. With very few exceptions (like, say, Louisiana), every court decision creates binding precedent throughout its jurisdiction. A panel decision possesses almost as much precedential value as an en banc decision; the only difference is an en banc hearing can overturn a panel decision, while a panel decision cannot overturn an en banc decision.
As a matter of practice, en bancs are almost superfluous. Looking at the statistics for the 8th Circuit Court of Appeals, they hand down unanimous panel decisions 97% of the time. This is for a court which is stocked almost straight 50/50 with appointees from hardcore Republicans and hardcore Democrats.
Only 3% of the time is a panel decision split; and less than 10% of the split decisions are sufficiently "interesting" (in a legal sense of the word) to warrant an en banc hearing.
If anyone's interested I can get statistics for the other circuits as well--I only know the 8th Circuit stats off the top of my head, though.
IANAL.
And how does this help? A watermark will show that you are the author (if it's still readable in a thumbnail). In this case, there was no dispute as to the authorship of the images. It was a question of fair use.
If one cuts out a portion of an image, modifies it, skews it, resizes it, perhaps adding to it, anti-aliasing it, changing it's color scheme, - doing any or all of the above - to the point that the original image could almost never be realized or certainly mistaken for/from it - in other words using the source image as a starting point for an entirely different use or result, is that fair use or copyright infringment of the original image?
One example which I think accurately reflects the question is in regards to 3D texture mapping - using only a portion of an image with the aforementioned modifications being made, and the result almost not being recognizable from the larger, original source image (being further modified inherently by it's 3D aspect - i.e. a 2D image mapped onto a 3D model) - is this fair use?
What's the legality of in-store CD players for sampling music you're about to purchase? When Tower Records has a bunch of "Listening stations" throughout the store do they have to pay for a license to let people listen to CDs on them?
let's you use it for personal use, and has certain exceptions allowing quoting for academic purposes.
Creating a derivative work for commercial use is clearly copyright violation.
So, does this decision lead to those little Unix "thumbnails" in Linux kernel being legal?
don't publish them on the web
at least, not without putting some kind of protection in front of them.
Siiiigh.
There is no "protection" for images put on the web. There are various hackish ways to make it slightly more difficult, such as splitting the image and using a table to display it(but making copying any one piece hard)- easily defeated by simply taking a screenshot; same for Flash stuff. There are various javascripts that capture a click(or sometimes even the pointer crossing over the image!) to display a popup telling you the image is copyrighted. Easily defeated by using a browser where you can turn off java/javascript(duh). Simple watermarks are VERY easily reverseable, since all they are is non-destructive brightness level modification. The invisble "digital watermarking" that's been in photoshop for years doesn't stop people from copying the image- it just helps to prove that in fact they DID steal the image. Which is completely redundant to, well, simply looking at the image.
There are well known solutions to this guys problem, and he choses the courts?
Yes, and it's his right to do so, because when you copy/use something that's copyrighted, without permission, YOU ARE BREAKING THE LAW. And quite frankly, as a non-pro photographer, I agree with the guy- companies are going to take this as a go-ahead for a free-for-all on photographer's images, as long as they keep the images small, etc. It's not a valid interpretation of course- but it won't stop companies from using it as an excuse. Sorry, but I think a thumbnail is a derivative work, and I should be able to publish my work on ANY medium and have the protection of the law should I find someone abusing said work.
I suppose next you'll say that photographers are using an "outdated business model" just like the music companies- how DARE they license an image they've taken, right?
Please help metamoderate.
when can i see a movie in a thumbnail?
What if I have large size photos on the web, as well as thumbnail photos of the same images. Assume that under each photo (of both sizes) is a notice of copyright. Doesn't that claim apply to the thumbnail?
Then, if a search engine makes a similar thumbnail, I can sue over a breach of the thumbnails' copyright.
Surely the court hasn't ruled that I cannot copyright my thumbnail images?!
Chalk it up to the pervasive influence of the Moonie Times, Scaife funded foundations and Father Limbaugh ... proving that if something gets repeated enough, it is accepted as truth, despite facts to the contrary.
From a NY Times response by Judge Noonan Jr. of the aforementioned 9th circuit - you'll probably have to pay to get the article but here is a blurb:
Of course, you're free to adhere to the Moonie Times myth that the 9th circuit court is some aberration of justice totally out of alignment with the rest of the world and other judicial bodies...
AZspot
You are correct. This published decision is binding precedent within the Ninth Circuit unless and until: (a) the Ninth Circuit grants re-hearing en banc (at which time its precedential value is suspened pending the en banc decision); or (b) the U.S. Supreme Court grants review (at which time, again, its precedential value is suspended pending the decision of the Supreme Court.
Ninth Circuit Rule 36-3 provides:
(emphasis added)
See http://www.ca9.uscourts.gov/ca9/Documents.nsf/8e0
You are also correct that the fact that it was decided by a three judge panel does not make any difference. The vast majority of precedential Ninth Circuit published opinions are decided by three judge panels.
Only Women Bleed (Sex, Sharia remix)
What if the court stated some metric? Like "must be at least 50% less than the original"... how about cutting the image in halves. Then posting both halves on your site such that they appear as one? Neither half violates individually?
... why, that would be tantamount to owning a color. And what kind of twisted company would try to trademark a color?
Just to be safe, I cut the picture up into individual pixels and then reassemble them into a single new image. And you can't own a single pixel
Cheers,
IT
Power corrupts. PowerPoint corrupts absolutely.
Careful. This ruling does not mean "we're allowed to harmlessly" copy CD's.
The ruling specifically nooted that Arriba removed the full-size images after making the thumbnails, and that the thumbnails can not be converted into a duplicate of the orginal image. This is equivalent to being unable to reconstruct the complete, original track.
Wait and see what happens next. Is Arriba finished with the legal process?
And, finally, this decision does not set a precedent.
-- Slashdot: When Public Access TV Says "No"
if you get down to page 12, you see that the court's opinion was based not only on the degradation in quality but on two other factors: the 'transformation in use' in that Kelly's work was for aesthetic value and Arriba's infringement was for informational value; and that Arriba's infringement was not competitive with the market for Kelly's product. it would seem that neither of these factors is present in mp3s of lower quality, and yet both are present in 30s clips of music, thus meshing well with law in those areas.
U.S. War Crimes blog. Email for free Mandriva support.
Pretty sure that the 9th Circuit is the most overridden court in the country...
I know replying to your own post is a sign of memory loss, but...
If I was an RIAA lawyer, I would argue that this ruling upholds the traditional concept of fair use as not encompassing a true and faithful reproduction of the entirety of a work.
I wouldn't be happy about this ruling, but I could make a case that the ruling does not bear on the legality of serving duplicate tracks on the Internet.
-- Slashdot: When Public Access TV Says "No"
When an image is put on the web, does that mean that the image must always be presented in the same context that the author intended?
In other words, what's the definitive answer to the following questions (references appreciated):
1. If I have a web page that displays an image via URL poiting back the original source of the image, is that fair-use since I have not actually copied the image, but rather referenced to it?
2. If I have a program that displays an image downloaded via URL pointing back to the original source, is that fair-use for the same above reason?
3 & 4. The same questions as the above, but add caching to improve performance.
5. If the any of the above has been answered no, then suppose the following: Mozilla has a feature where you can right-click on an image, select "View-Image", and then view the image alone with out its surrounding context. Mozilla has also most likely cached the image. Is this legal?
How long before partially-sighted people start complaining that thumbnails discriminate against them and demand full-size images? Will the court protect that under the Americans With Disabilities Act?
No. Assistive technologies are commonplace that magnify the thumbnail but still do not produce an image that can reasonably substitute for what the photographer is trying to sell.
Will I retire or break 10K?
Were it the case that people were pirating in this way the RIAA would have to show some proof of pirating, rather than just saying the people were using P2P networks and they should be ready to prove their innocence in court or hand over their savings. Or they harass any customers that have downloaded a good number of clips, hurting their image further, not that they seem to care. The piracy itself is the end result of either method and the legality of that obviously will not change. However, the distribution method, slicing up the song into legal clips for download, would have changed. Thus it would make it more difficult for the authorities to say Joe User has a pirate copy of a song though not making it any less illegal for Joe User to have it.
Of course, to do this reconstruction a 30 second clip would have to have some idea as to where in the overall song it fit. Though that could probably be done with something in ID3 tags for MP3s. Technical details aside, it would make for an interesting distribution method for songs, in my opinion.
If not now, when?
First, the July 7, 2003 decision IS precedent and can be cited. What is no longer precedent is their Feb. 6, 2002 decision. A lawyer in the know would have to tell you why, but my guess is that some technical glitch allowed Kelly, the plaintiff in the case, to ask for a "rehearing en banc." By withdrawing and refiling what seems to be the same decision, the appeals court created their own technicality that allowed them to rule Kelly's petition moot. Law is full of those sorts of games.
The decision mattered in my case because I'm in Seattle, which in 9th Circuit and a 9th Circuit Appeals decision like this one has the force of law at the district court level where I was fighting. If I could show a great deal of relevance between "fair use" in that case and my appeal to fair use, my defense would be on very solid ground.
That mattered because the Tolkien estate's case was built on a series of 1998 decisions in the 2nd Circuit (New York), the most important of those cases being Castle Rock, a decision that found a book of Seinfeld trivia called the Seinfeld Aptitude Text as an infringing derivative.
The court's rationale was that a fictional author creates an entire world and any use of that, whether in a trivia book or some sort of viewer's guide was infringement. The decision was much criticized in legal journals, no other circuit has followed it, and, to my knowledge, tthe 2nd Circuit hasn't repeated it. You can go to:
http://chillingeffects.org/
for a discussion of the effect that has had on Internet fan fiction. It has also made if VERY RISKY to do guide books to popular movies, TV shows or, by extension, popular works of fiction like Lord of the Rings. Books that help readers understand fictional works, rather than make academic literary comments on them, are at risk until the Castle Rock decision is buried.
My defense was that online art (as in Kelly v. Arriba) is a form of fiction and my bullet-list summaries of what happened each day the equivalent of thumbnails. Settling out of court, we will never know if the judge would have bought that argument. But I did have a lawyer tell me that if I'd won on it at the district and appeals level, the case would have headed for the Supreme Court, since the 2nd and 9th circuits would have been in conflict. Since that would have taken years, I was better off settling out of court.
This decision applies to music in a roughly similar fashion. The Castle Rock decision virtually eliminated a whole spectrum of what would otherwise be fair use categories simply because the work was art/fiction rather than fact/biography/history. It would be very easy to slip music into art, making even brief excerpts, perhaps in an Internet radio show, illegal.
The Kelly v. Arriba decision has two key factors. First, when the reduction is great enough (i.e. a picture is reduced to a thumbnail) the original purpose of the art is no longer being served, so the thumbnail is not infringing.
The second factor is that the thumbnail is part of something (i.e. an image database) that is serving a different purpose, in this case, indexing internet images. If that purpose has public value, then it is fair use and protected from charges of infringement. Think, for example, of a book that gives the basic plot of movies or an audio database that has short (stressing short) samples of music, indexed perhaps by artist, gendre, theme, etc.
That's w
A thumbnail is a reduced-resolution replication of an entire copyrighted piece of work, and has just been called a legal representation of what one can obtain if one purchases the full-resolution version. How much reduction must take place for this to be legal?
I don't see how MP3s don't fall under this same definition. The only question is what is the max resolution/bitrate of MP3s before they're no longer audio thumbnails?
I don't understand why this isn't binding. About 90% of appellate cases are heard by three judge panels. Not many cases are heard en banc because of the added costs -- nor are many cases of such importance as to require it.
Yeah, "I used to be rich. I owned Mickey Mouse Massage Parlors. Then those Disney sleazeballs shut me down, I said look, I'll change the logo, I'll put Mickey's pants back on. You just can't reason with some people"
-Ted
-=-=- Quantum physics - the dreams stuff are made of.
Yes, I misspoke about the "binding precedent" thing. I was misconstruing the rule that a three-judge panel is not permitted to go outside the bounds of existing precedential rulings of the en banc court. Pardon me while I flog myself privately. :D
-- Mark
Copyright doesn't imply OWNERSHIP of an idea or a creation; its simply a way to harness your ideas or creations for profit.
There are limits, and this is nothing but anoyhrt limit on copyright. There are many limits.
I see this case as entirely reasonable and fair. LIttle tiny thumbnails are okay, but any more use requires permission of the photographer.
Like I said, copyright doesn't give creators carte blanche to control their work. Sorry, it doesn't work that way.
Most computer systems have programs to magnify portions of the screen. Magnification can be adequately handled on the end-user's computer.
Of course, the magnified thumbnail will look like crap. But that's hardly discriminatory; the tiny one looks like crap too.
Mod down posts with a "Free Mac Mini/iPod" sig, they're spam!
People think they have grand principle; they're just being a stubborn asshole because they want to be a stubborn asshole.
There's no explanation for people.
I don't even care what people think anymore.
is the number of 'original' posters that compared thumbnail images to illegal mp3s. I bet they all thought they were so smart, no one else could make the same joke as they did. Except for the dozens of other idiots who had the exact same stupid thought. Looks like the /. effect has finally shutdown human creativity.
We're in the process of organizing a BBQ on campus for one of our student groups. On the application form, there is a question:
Do you plan to play music? ____ $35.00
Do you plan to have dancing? ____ $60.00
The dollar amount represents something called a "SOCAN" fee (this is a Canadian thing related to copyright). Apparently, playing the radio is fine, but if we fire up some CDs, we have to contribute to a nice fund to (I assume) help out the artists - by which they most likely mean the labels. Nowhere does it specify whether we're going to be playing signed acts, or the local campus band.
But my question is, why is it more expensive if we want to let people dance to the music???
Endless arguments over trivial contradictions in books written by ignorant savages to explain thunder in the dark.
The wisdom in the business is that 30 second clips (this is the magic number for some reason) are perfectly legal to allow people to access without payment.
Good thinking... I'm going to immediately go register FirstThirtySeconds.com, SecondThirtySeconds.com, ThirdThirtySeconds.com, etc, etc... Then someone from Estonia will write a program to recompile these clips.
I can probably explain better with a diagram. Imagine each number is a pixel.Now thumbnail 1 looks like:and thumbnail 2 looks like:And so on...
Spread that method over the entire picture and you should have a relatively decent looking thumbnail. Combine all the thumbnails and you have all the data you need to restore the original.
I don't think the RIAA is going to waste time and money going after individual downloaders. They want to put the folks who run "wholesale" servers out of business. They expect the ripple effect to work in their favor.
As for the clips, I really doubt the courts will ever rule that fair use encompasses making a copy of an entire work available without permission, even if a number of people break the work into small pieces for re-assembly on the other end. The clear purpose would be to evade the intent of the law by exploiting a "loophole", one that would be closed quickly.
-- Slashdot: When Public Access TV Says "No"
Someone will use Shaq's thumb as a size guide, and the thumbnail will bigger than the original.
"But Judge, it is only as big as my friend's thumb."
Table-ized A.I.
The point of Fair Use is to allow a work to be discussed or referenced without obtaining permission, as long as it is done in a way that does not diminish the value of the original work.
Hence a thumbnail hints at what the whole picture looks like, and might even inspire you to buy the full resolution picture. A 30 second clip gives you a sense of the song, without giving the song away.
But it is not a right to steal by downsampling or slicing into pieces which gasp can be put back together again.
Fair Use has an important role in the exchange of information. Don't muddy it up as some flimsy excuse for theft.
Opinions from 3 judge panels are binding precedents if they are marked for publication. Because this case is marked for publication, it is binding precedent for federal courts in the 9th Circuit.
takes one to know one
Per curiam stands for "by the court"; per curiam opinions are merely unsigned, and are designated by the court as per curiam. No single justice is given credit for writing the opinion (as is the custom), but the opinion is binding. Most often, per curiam decisions are issued when a court finds that no substantial controversy or issue of law exists; however, there can still be concurring and/or dissenting opinions with a per curiam decision, or even a substantial question presented. For example, Bush v. Gore (a PDF of the opinion as published in Volume 531 of U.S. Reports; scroll to page 298 of the PDF, 98 by the page numbering, if interested) was a per curiam opinion, with five written opinions: the unsigned per curiam opinion, a concurring opinion, and three separate dissenting opinions.
Reference: Cornell Law School's Legal Information Institute definition of per curiam .
Insightful, Incorrect, Misleading, Duplicate
Although I agree with the ruling, I have to wonder about the applications.
It is fine and good that a thumbnail is being used for educational purposes, but what will the dividing line concerning this be?
What if a thumbnail is used for "Old Women in Bondage"? Could this be seen as an endorsement, even though the thumbnail is used without permission? Especially now, as satire is a bit ambiguous.
The ruling addresses simple copying as fair use, but doesn't address creative control. This leaves more questions than it answers.
What I DO mind are the idiots who IMG SRC link to images stored on my server from their ebay auction / amazon.com store / discussion forum. :-(
:-(
Damn bandwidth thieves
only fair use if doesnt hurt market
I'd actually somewhat define 'fair use' by wether it hurts the market or not. No?
I actually consider this a somewhat wise decision. One of the prime examples that we luckyly have got judges to once in a while correct the crap from politicians and juristical bullies we have to put up with.
I understand for instance that the DMCA contradicts with elemental parts of the american constitution and that not over long one judge or other will rule the DMCA not applicable in a case where some poor guy is about to be sued blind by some megacorporation.
We suffer more in our imagination than in reality. - Seneca
That case was a major Title IX (Bosley v. Kerney R-1 904 F. Supp. 1006(WDMo 1995)), the first student-on-student sexual harassment case tried before a jury. We had a 60 + headnote F.Supp decision published and then 16 months later the Court granted a JAML. That JAML was not published until AFTER the 8th Cir ruling came down. So there are two Bosley v. Kearney R1 F.Supp decisions published 3 years apart. The JAML decision states that the first published opinion was published as a "computer error".
I was more than capable of producing a hyperlinked brief, but this was 8 years ago. I created a Folio database of every relevant case and all pleadings . . . but the trial transcript was not in electronic form and I know that I couldn't have scanned that many documents / OCR'd them / checked them for errors and then made some motion for their use and still have written the brief! There were only three attorneys on the plaintiff's case and I was the sole author of the brief. No big bucks for advanced technology were available.
It is interesting that when the 8th ruled that the JAML was proper and upheld the underlying decision, because the JAML decision had not been published the Sheppard's reports continued to show the first Bosley as good law!
The SCT had consolidated 5th Cir & 9th Cir cases that were later in time than Bosley and found for the plaintiffs' where the harassment was sufficiently pervasive to interfere with the free appropriate public education guaranteed the victim (my argument before the 8th). The SCT opinion, citing Bosley's first F.Supp decision, came down about two months after we lost in the 8th and before the second F.Supp decision was published. Talk about a Pyrrhic victory.
The "Deutsche Telekom" has at least an European trademark on 100% magenta. They have successfully sued multiple websites for trademark infringement.
An MP3 is significantly smaller than the data on a cd representing the same song.
Not that this is in any way a ruling that will have an effect on music... besides the fact that the ruling doesn't set a binding precadent; but hey, we can dream can't we? Or is it also copyright infringement if you happen to hear their music in your dreams?
I can count to 1023 on my hands. Ask me about #132.
If he doesn't want anyone to see his pictures, then why did he put them on the internet?
you all considering low quality mp3s as thumbnails are thinking about it wrong.
a thumbnail is a copy of a picture, but at a smaller resolution(read: size). it doesn't mean it's lower quality. now if it went from 32-bit color down to 256 colors in the thumbnail then that would be lower quality.
so a thumbnail of an mp3 would be smaller size, not quality. so 30 second samples are in fact thumbnails.