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."
I believe this is already the case. I believe that artists/radio stations can use samples (shorter than 30 seconds i think) without having to pay for them.
"I can not bring myself to believe that if knowledge presents danger, the solution is ignorance" - Isaac Asimov
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...
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.
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
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.
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
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.