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9th Circuit Court Finds 'Thumbnailing' Fair Use

timothy posted more than 11 years ago | from the lo-res-things-in-small-packages dept.

The Courts 266

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."

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Kiss my DMCA (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6386469)

cause I got a first post, DMCA enabled!

Good (5, Funny)

Anonymous Coward | more than 11 years ago | (#6386478)

Hopefully the RIAA wont object to me distributing thumbnails of music as MP3's

One small step for law, one giant leap for freedom!

Re:Good (0)

Anonymous Coward | more than 11 years ago | (#6386584)

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

Is this even english? Or is it just a really bad run on? Or is it a just a really bad conglomeration of karma whoring buzzwords? You be the judge.

Re:Good (5, Interesting)

tuxlove (316502) | more than 11 years ago | (#6386772)

Hopefully the RIAA wont object to me distributing thumbnails of music as MP3's

Actually, music "thumbnails" are legal. How do you think retail sites such as Amazon offer 30-second song clips? 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. However, it may be that it has to be done in the context of music sales. Simply putting a (preferably deep) link to a retail site on a web page bearing song clips is probably good enough.

Wait a second. (1, Interesting)

caseydk (203763) | more than 11 years ago | (#6386830)


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

Leslie Kelly (3, Funny)

Razor Blades are Not (636247) | more than 11 years ago | (#6386479)


Leslie Kelly.
Poor guy. He's got *two* girls names.

Makes that poor schmuck Sue sound lucky.

Re:Leslie Kelly (1)

usotsuki (530037) | more than 11 years ago | (#6386799)

"My name is Sue! How do you DO!! Now you gonna DIE!!"

LOL, I can understand.

-uso.

Hey-yo! (0)

Anonymous Coward | more than 11 years ago | (#6386481)

Thumbnailing???

Whoa, DON'T GO THERE, GIRLFRIEND!!!

Lameness filter encountered. Post aborted!
Reason: Don't use so many caps. It's like YELLING.

When is a picture not a picture? (3, Funny)

hashish (62254) | more than 11 years ago | (#6386484)

When it is a thumbnail :O

Re:When is a picture not a picture? (4, Insightful)

spazoid12 (525450) | more than 11 years ago | (#6386494)

Good question. All the copyright images that I use on my site are shrunk 99% of their original size before uploading...because I lawfully only publish thumbnails.

Re:When is a picture not a picture? (2, Funny)

L. VeGas (580015) | more than 11 years ago | (#6386536)

So... a thumbnail's worth 10 words?

Re:When is a picture not a picture? (1)

(54)T-Dub (642521) | more than 11 years ago | (#6386539)

and what kind of site would that be? pictures of naked seals or something?

Re:When is a picture not a picture? (5, Interesting)

spazoid12 (525450) | more than 11 years ago | (#6386541)

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?

Re:When is a picture not a picture? (4, Insightful)

TrekkieGod (627867) | more than 11 years ago | (#6386589)

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?

That wasn't an issue even when fair use was an unquestioned law. If you were to reproduce an entire short story in the form of 2 line quotes, no one in their right mind would believe you're not violating the copyright.

I think you're right in the sense that a "thumbnail" is arbitrary, but I think that if the court did state some metrics, the problem would be pretty much solved. At least when it comes to pictures.

Re:When is a picture not a picture? (0)

Anonymous Coward | more than 11 years ago | (#6386610)

before people start replying "when was fair use ever a law" I'll go ahead and correct myself. I meant to say "a right unquestioned by the law", but didn't use the preview button...shame on me.

Re:When is a picture not a picture? (1)

gpinzone (531794) | more than 11 years ago | (#6386691)

No it wouldn't. Because as technology evolves, new issues would arise.

"Your honor, my client's images were thumbnails were within the 10% of original size metric as stated in the precedent."

"Yes, but you did so by using a different compression algorithm."

"So what?"

and so on...

Re:When is a picture not a picture? (1)

Leffe (686621) | more than 11 years ago | (#6386635)

I'd consider fair use of an image to be when you can not enjoy all of the image in all of it's glory. A thumbnail for example, does not allow the client to see the full detail of the image(if he can, it is not a thumbnail in my opinion). Thumbnail are not supposed to be enjoyed, they are supposed to be used to give a quick impression of the shapes and colors, to let the client more easily remember picture and images.

I highly doubt that any court will rule agains the thumbnailers, IANAL though, and especially IANAALNEAC(I am not an american lawyer, not even a citizen) - acropolis(Sort of a play on acronym and metropolis, I thought about acrorama or something... please give some suggestions, acronymorama! :D)!

Re:When is a picture not a picture? (0)

Anonymous Coward | more than 11 years ago | (#6386735)

Thumbnail are not supposed to be enjoyed, they are supposed to be used to give a quick impression of the shapes and colors, to let the client more easily remember picture and images... IANAL though, and especially IANAALNEAC(I am not an american lawyer, not even a citizen)

For a foreign non-lawyer, you're pretty on top of the law. That's exactly what the ruling was.

confessions of a sicko (1)

binarybum (468664) | more than 11 years ago | (#6386766)


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)

Re:When is a picture not a picture? (1)

dougmc (70836) | more than 11 years ago | (#6386822)

I'd consider fair use of an image to be when you can not enjoy all of the image in all of it's glory.
I'd tend to agree with you.

It's an interesting analogy to apply to mp3s, however. mp3s are inferior replications of their source data, so obviously they cannot be enjoyed `in all their glory'. Of course, 128 kbit/s gets you most of their glory, and so I'm sure the courts would consider that good enough.

Other aspect of "Thumbnailing" (2, Insightful)

melete (640855) | more than 11 years ago | (#6386485)

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.

Re:Other aspect of "Thumbnailing" (0)

Anonymous Coward | more than 11 years ago | (#6386806)

Read The Fucking Article! The court granted use of full-size images since that kind of usage didn't decrease the market of and the value of Kelly's photographs. This is a decision made on common sense. May I quote:

The court determined that two of the fair use factors weighed
heavily in Arriba's favor. Specifically, the court found that
the character and purpose of Arriba's use was significantly
transformative and the use did not harm the market for or
value of Kelly's works.
The issue of thumbnails is moot. The decision says that this kind of usage is fair-use because it doesn't harm or impede the creativity behind the images. No legal loopholes can be squeezed out of this.

Applying the same logic (3, Funny)

immanis (557955) | more than 11 years ago | (#6386486)

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!

Re:Applying the same logic (0)

Anonymous Coward | more than 11 years ago | (#6386498)

How about sharing songs if the quality is only 25% of the commercial version?

Re:Applying the same logic (0)

Anonymous Coward | more than 11 years ago | (#6386535)

Yes. Lets see you quantify that. Moron.

Re:Applying the same logic (0)

Anonymous Coward | more than 11 years ago | (#6386576)

Well, 22050 Mono? Or 11025 Stero?

Re:Applying the same logic (0)

Anonymous Coward | more than 11 years ago | (#6386618)

Sure dipshit,

To decrease the quality of an image you can lower the resolution, the image still looks fine when viewed at a smaller size. To decrease the quality of an audio file you can encode it, the audio still sounds ok on smaller systems.

Blow up a low res image to a larger size and artifacts become obvious.

Play an MP3 loud through decent speakers and artifacts become obvious.

Thanks.

Re:Applying the same logic (1)

usotsuki (530037) | more than 11 years ago | (#6386829)

I find 11K PCM 8-bit mono WAV format to rival MP3.

So define "low quality".

GSM? (I used to rip to GSMWAV a lot. Fit 3 full songs on a 1.44 MB disk.)

-uso.

Re:Applying the same logic (4, Informative)

(54)T-Dub (642521) | more than 11 years ago | (#6386506)

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.

Re:Applying the same logic (2, Interesting)

retto (668183) | more than 11 years ago | (#6386614)

If it is applied to music, wouldn't a ringtone for a call phone be considered a thumbnail? Both are smaller and have fewer details than the original source.

Re:Applying the same logic (1)

quantaman (517394) | more than 11 years ago | (#6386660)

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.

What if the song itself is shorter than 30 seconds?

Re:Applying the same logic (2, Insightful)

Surak (18578) | more than 11 years ago | (#6386752)

I'm guessing standard fair use principles apply here. Just like you can quote a few lines from a source for a research paper, if the thing is only a few lines you still can't incorporate the *entire* work, so you can only incorporate whatever percentage is considered 'fair use'. Of coruse, the shorter you go on a work, the less chance that it qualifies as being "sufficiently original" for copyright protection.

A song that was really really short (like a few notes) would probably fail the originality test.

Re:Applying the same logic (1)

the idoru (125059) | more than 11 years ago | (#6386690)

i'm not a lawyer, but i believe that you can't sample beats. i believe public enemy was taken to court for sampling beats. which is kind of odd cause you can just sample a small portion and then loop it :) but i guess since the final result is the same as the original, it's not kosher.

but playing snippets of a song is ok/free. i even recall an episode of the simpsons where krusty is hosting another retirement special and yells to the band 'stop stop stop! play any more of that song and we have to pay for it.'

Re:Applying the same logic (2, Interesting)

Renegade Lisp (315687) | more than 11 years ago | (#6386734)

So the stage for next-generation P2P is already set. Each server only distributes a randomly chosen snippet of a song, cut at defined intervals (the first 30 seconds, the second 30 seconds, etc.). To download a full copy, you need to get all the pieces from different servers. If the piece size is not too small, and there is enough redundancy in the system, this might work without problems.

Of course, as soon as this started working, they would try and rewrite the laws to forbid it. And on to the next iteration...

Re:Applying the same logic (0)

Anonymous Coward | more than 11 years ago | (#6386510)

More like putting thumbnails of albumcovers on your (retail) site

Re:Applying the same logic (1)

SandmanWAIX (674838) | more than 11 years ago | (#6386524)

hmmm, I was thinking more like a lower quality / bit rate version that was smaller in size.

Re:Applying the same logic (2, Funny)

Timesprout (579035) | more than 11 years ago | (#6386526)

No it just means you must supply a thumbnail of the cover for the album you are sharing and you can do as you please.., no wait thats not it..

Re:Applying the same logic (2, Funny)

el-spectre (668104) | more than 11 years ago | (#6386591)

It means blink 182 songs are all free...

Re:Applying the same logic (1)

Exiler (589908) | more than 11 years ago | (#6386724)

I'm thinking they'd hafta start paying me to actually liesten to that tripe

Re:Applying the same logic (1)

Nexzus (673421) | more than 11 years ago | (#6386623)

I thought most pop songs were half a verse and the rest was all chorus.

Re:Applying the same logic (0)

Anonymous Coward | more than 11 years ago | (#6386689)

Does this mean that I can legally share very small versions of pop songs? Like maybe, half a verse and the chorus?


Yup. In fact that's a great idea for a new compression technique. Just play the file twice and you reconstruct the original recording!

Re:Applying the same logic (1)

IthnkImParanoid (410494) | more than 11 years ago | (#6386700)

Well, if it is, then if I use P2P software to download very small chunks of songs, is that legal? If so, would it be legal to combine them? If not, would it be legal to queue them up in a playlist?

The sound you hear is the collective popping of RIAA execs' forehead veins.

Re:Applying the same logic (1)

sik0fewl (561285) | more than 11 years ago | (#6386702)

I'll share the chorus, you share the verses.

Related News (-1, Redundant)

Anonymous Coward | more than 11 years ago | (#6386502)

9th Circuit Court finds 'Thumbnailing' useful when browsing pr0n!

Re:Related News (1)

drquizas (681020) | more than 11 years ago | (#6386538)

When asked for an explanation of their decision, the judges declined to comment, instead choosing to take turns breathing heavily into the phone.

Interesting ruling... (3, Insightful)

rekkanoryo (676146) | more than 11 years ago | (#6386507)

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.

Re:Interesting ruling... (2, Insightful)

Anonymous Coward | more than 11 years ago | (#6386600)

I think the commentator who thought this wasn't binding precedent is probably incorrect - unless the U.S. Supreme Court chooses to review it. The snippet seems to be referring to the court's note regarding the "slip opinion." Because the current opinion was "for publication" it looks to me like this is now the court's official position on the case, and supercedes the earlier slip opinion. It is the slip opinion that is not citable, not the ruling Slashdot linked to. IANAL. Maybe a real lawyer can tell us what the precedential value of this decision is.

Re:Interesting ruling... (1)

cpt kangarooski (3773) | more than 11 years ago | (#6386627)

IANAL, but circuit court opinions are perfectly binding precedent within their circuit, which here, would be the western US.

Given that appellate courts are just groups of judges anyway, I don't see what the original poster was basing his argument on.

Re:Interesting ruling... (1)

darth_MALL (657218) | more than 11 years ago | (#6386625)

IANAL - I know next to nothing of law except Matlock. I was under the impression that any ruling could be used as a precedent. If it must be officially made a precedent, is that done at the time of the ruling? Who makes the decision?

Re:Interesting ruling... (1)

rekkanoryo (676146) | more than 11 years ago | (#6386663)

Well, IANAL either but I think for it to be considered binding precedent the Supreme Court or the next higher courts have to rule on it (I'm under the impression the 9th circuit isn't the highest court below the SC).

Courts and "binding" rulings (5, Informative)

djembe2k (604598) | more than 11 years ago | (#6386743)

IANAL, yadda, but . . .

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.

Re:Courts and "binding" rulings (0)

Anonymous Coward | more than 11 years ago | (#6386818)

You're right. It's helpful to separate the two concepts. Precedent just means it has been done before. While there may be various reasons you might not want to rely on a case as support for a particular position, it is at least somewhat helpful to know what a court has done before and, more importantly, WHY the court has done it. The court's reasoning can often be persuasive. As for the "binding" part - a decision is binding if courts of lesser authority are required to follow the decision. Wikipedia [wikipedia.org] has a pretty good explanation of how stare decisis works.

Translation: (1)

antis0c (133550) | more than 11 years ago | (#6386512)

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.

Re:Translation: (1)

rekkanoryo (676146) | more than 11 years ago | (#6386546)

The problem isn't limited to the judges. The problem is everywhere in the government. Legislators are perhaps the stupidest of all, or at least the most gullible, for passing the stupid laws in the first place. But it's not like we've exactly had any tech-intelligent members of the Executive branch, either.

Re:Translation: (1)

Capt'n Hector (650760) | more than 11 years ago | (#6386588)

Just because they have other things to do than sit around slashdot all day does not make their decisions any less informed. You don't need to know what Apache is to decide whether thumbnailing is fair use.

what constitutes as thumb (5, Interesting)

ianmalcm (591345) | more than 11 years ago | (#6386523)

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?

Re:what constitutes as thumb (1)

Anonymous Coward | more than 11 years ago | (#6386570)

Well here's a section of digital image:

10010100010011110110101

And here's a section of digital music:

10010100010011110110110

The RIAA could see the difference can't you?

Re:what constitutes as thumb (1)

Otter (3800) | more than 11 years ago | (#6386713)

The premise of the original Kelly decision was that a legal, fair-use thumbnail serves a different purpose than the original image. It supported reduced thumbs that only served to help the reader but came out against larger pictures that competed with the original artist. The judge explained, among other things, that scaled-down porn has content value, and is therefore less likely to be protected than similar non-porn reductions.

An interview with the judge (Posner, IIRC) was linked here but I can't find it.

So, no, low bitrate, full-length MP3's would not be protected; short snippets might be.

Re:what constitutes as thumb (1)

salzbrot (314893) | more than 11 years ago | (#6386800)

IANAL, but I am pretty sure one cannot apply this ruling to compressed music-files. A conversion of a music file into a compressed format (e.g. a song from a CD converted to mp3) is not comparable to a thumbnail, because a conversion of an image file into a compressed format (e.g. a tiff converted to a jpeg-file) would also not constitute as a thumbnail.

as much as this makes sense... (3, Informative)

ecalkin (468811) | more than 11 years ago | (#6386529)

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

Corporate law (2, Interesting)

TrekkieGod (627867) | more than 11 years ago | (#6386530)

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.

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.

Go ahead and mod this (-5, Tasteless) (0, Offtopic)

el-spectre (668104) | more than 11 years ago | (#6386547)

Sadly, 'fingerbanging' is still not fair use...

OMG What did you just say, Johnny?? (0)

Anonymous Coward | more than 11 years ago | (#6386564)

Can I get a, "HEY-YO!"??

wow, a (real) fair use ruling. (1)

Honest Man (539717) | more than 11 years ago | (#6386552)

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)

So ... (2, Interesting)

SvendTofte (686053) | more than 11 years ago | (#6386554)

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.

Google's Policy (4, Informative)

heli0 (659560) | more than 11 years ago | (#6386579)

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 [google.com]

I wonder if they will consider changing that policy now?

Re:Google's Policy (0)

Anonymous Coward | more than 11 years ago | (#6386763)

I believe that Google will de-index your site if you request it, and they certainly (legally) have no reason to offer that, so I don't see why they'd stop offering to remove your pictures if you want them to.

Leslie Kelly is an IDIOT (4, Insightful)

graveyhead (210996) | more than 11 years ago | (#6386585)

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 :(

Re:Leslie Kelly is an IDIOT (1, Insightful)

Honest Man (539717) | more than 11 years ago | (#6386612)

While I agree with you. Look how much more attention and publicity he's received this way.

yay!! (0)

Anonymous Coward | more than 11 years ago | (#6386592)

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!!

smaller = fair use? (0)

Anonymous Coward | more than 11 years ago | (#6386594)

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

robots.txt (1)

dattaway (3088) | more than 11 years ago | (#6386595)

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.

Wait a Second. (0, Flamebait)

_Sambo (153114) | more than 11 years ago | (#6386599)

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.

Re:Wait a Second. (1)

cowsgomoo666 (663881) | more than 11 years ago | (#6386739)

It *is* unconstitutional. We have a seperation of church and state. So "under god" shouldn't be in the pledge.

No No No! (0)

Anonymous Coward | more than 11 years ago | (#6386785)

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.

Courts (4, Funny)

inertia@yahoo.com (156602) | more than 11 years ago | (#6386648)

<fat_comic_book_guy_from_the_simpsons>
Oh great. Another ruling from the most overturned appellate court ever.
</fat_comic_book_guy_from_the_simpsons>

The summary is slightly misleading (1)

robindmorris (682328) | more than 11 years ago | (#6386686)

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."

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.

I think Thumbnails should be ok because.... (3, Informative)

greymond (539980) | more than 11 years ago | (#6386688)

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.)

Dr Seuss! (2, Funny)

robindmorris (682328) | more than 11 years ago | (#6386708)

Any court ruling that footnotes Dr Seuss must be good! (see page 8 of the pdf document)

This does have precedential value (1)

Rene_Daley (677214) | more than 11 years ago | (#6386719)

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.

Thumbnails != art (2, Insightful)

NetDanzr (619387) | more than 11 years ago | (#6386721)

I would agree that using thumbnails falls under fair use, unlike using a lower-quality version of a song. Before I get into my argument, I'd like to point out that the following is just the way I feel about the issue, and not supported by any objective evidence.

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...

Re:Thumbnails != art (0)

Anonymous Coward | more than 11 years ago | (#6386787)

So what about thumbnails of paintings or 3d rendered imagery or a photoshop composition? I think you overestimate the abilities of songwriters and composers, and underestimate the abilaties of producers and recording engineers!

what? (1)

Suppafly (179830) | more than 11 years ago | (#6386729)

(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.

Thumbnailing = Reducing In Size (0, Redundant)

Azathoth!EDC (222280) | more than 11 years ago | (#6386749)

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.

Historical article! (1)

Chmarr (18662) | more than 11 years ago | (#6386755)

The historically inclined might want to read Slashdot's previous coverage [slashdot.org] of a very similiar article.

But... surprisingly... not identical :)

Slashdot is not the place for legal advice (4, Insightful)

zavyman (32136) | more than 11 years ago | (#6386757)

(Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)

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 [wright.edu] , but

What Is Case Law?

Case law refers to decisions in the various court systems which set precedent for future decisions and are therefore part of the common law.

The effect of a court decision depends on the level of court at which a case was decided. A decision of an appellate court is binding precedent in all lower courts in its jurisdiction. A U.S. Supreme Court decision is binding precedent in all courts dealing with any aspect of federal law.


We have to distinguish between published and unpublished opinions in some districts, but the point basically stands.

3 Judge Panel (4, Informative)

CaptainStormfield (444795) | more than 11 years ago | (#6386758)

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.

Thumbnailing? (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6386768)

How about Fisting?

Precedent? (1)

astroview (105285) | more than 11 years ago | (#6386778)

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.

Fantastic news!!!! (0)

Anonymous Coward | more than 11 years ago | (#6386781)

So all those preview images I got from Corbis and Photodisc to use as icons are valid? Wahey!!!

Precident by a 3 judge panel (3, Informative)

grolaw (670747) | more than 11 years ago | (#6386782)

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)).

Re:Precedent by a 3 judge panel (1)

egrass (687609) | more than 11 years ago | (#6386825)

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.

Thumb Me (2, Interesting)

Malicious (567158) | more than 11 years ago | (#6386786)

So when I start using Thumbnails of Corporate Logo's and Trademarks, can I hide behind this firewall and plead fair use?

Thumbnails discriminate against partially-sighted (4, Interesting)

Nom du Keyboard (633989) | more than 11 years ago | (#6386791)

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?

In short, how many of our laws affect out other laws in unforseen ways?

It is binding precedent . . . . (1)

egrass (687609) | more than 11 years ago | (#6386792)

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.

What would be more interesting... (0)

Anonymous Coward | more than 11 years ago | (#6386805)

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.

Precedent (1)

N7DR (536428) | more than 11 years ago | (#6386807)

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.

It IS binding precedent. (2, Funny)

Diglielo (582602) | more than 11 years ago | (#6386812)

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)

dont look at my website! (1)

Whitecloud (649593) | more than 11 years ago | (#6386832)

"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. :)

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