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!
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?
Without reading the article / ruling / whatever (I'm lazy today)... what makes a thumbnail OK?
Is it because it presents significantly less information than the original?
What if it remained the original's size, but was B&W instead of color?
What if it were saved as JPEG quality 2 instead of the original?
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?
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.
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