9th Circuit Court Finds 'Thumbnailing' Fair Use 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."
Good (Score:5, Funny)
One small step for law, one giant leap for freedom!
Re:Good (Score:5, Interesting)
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.
Re:Good (Score:5, Insightful)
The logical equivalent of a 30 second music clip is to display a portion of the normal resolution image.
Re:Good (Score:5, Funny)
Don't Get Excited (Score:4, Interesting)
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.
Re:Don't Get Excited --Oh, Wait... (Score:2)
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.
Re:Don't Get Excited --Oh, Wait... (Score:2)
Were it the case that people w
Fair Use dependent on intent (surprise) (Score:3, Insightful)
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.
Fa
in-store CD players? (Score:4, Interesting)
FirstThirtySeconds.com (Score:3, Funny)
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.
Wait a second. (Score:2, Interesting)
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
Re:Wait a second. (Score:3, Interesting)
WHAT? how is this a troll? The 9th circuit ruled in this case. The 9th circuit IS the most overturned court in the country. Informative perhaps?
Re:Good (Score:4, Insightful)
Re:Good (Score:2)
I agree completely, who called this funny ? The Thumbnails in question were not just images of a small part of the picture, they were images of the entire picture, but at a smaller size, and so obviously at a lower quality (lower resolution). Although the RIAA likes to promote the lie that an MP3 is as good as an original recording because it serves their purpose, this just isn't true. An MP3 is lower quality (even when you've
Re:Good (Score:3, Informative)
1. The iTunes store sells AACs, not MP3s.
2. While songs may be 99 cents each, albums are nearly always $9.99, even if they contain 18 tracks.
Re:Good (Score:3, Funny)
Leslie Kelly (Score:3, Funny)
Leslie Kelly.
Poor guy. He's got *two* girls names.
Makes that poor schmuck Sue sound lucky.
When is a picture not a picture? (Score:3, Funny)
Re:When is a picture not a picture? (Score:4, Insightful)
Re:When is a picture not a picture? (Score:2, Funny)
Re:When is a picture not a picture? (Score:2)
Re:When is a picture not a picture? (Score:5, Interesting)
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? (Score:5, Insightful)
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? (Score:2)
"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? (Score:2)
Re:When is a picture not a picture? (Score:4, Insightful)
-
"You're violating our trademark because the guy in the background of your picture is drinking a Coke emblazoned with our logo and a picture of our logo is still our logo"
- "You're stealing our intellectual property because your character looks too much like Mickey Mouse"
- "We're gonna sue because that bass drum might have been sampled from us"
Some people act as if slippery slopes can be avoided, but they cannot.Re:When is a picture not a picture? (Score:4, Funny)
When is a picture not a picture? When it's a pixel (Score:4, Funny)
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
Re:When is a picture not a picture? (Score:4, Informative)
So, if all other points are moot, if someone convinces a court that thumbnails hurt his sales (or that music snippets hurt their CD sales), the court could consistently rule that it isn't fair use.
So an mp3 is 90% smaller than a wav... (Score:2)
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
confessions of a sicko (Score:2)
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? (Score:2)
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" (Score:2, Insightful)
Applying the same logic (Score:4, Funny)
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 (Score:5, Informative)
Re:Applying the same logic (Score:2, Interesting)
Re:Applying the same logic (Score:2)
What if the song itself is shorter than 30 seconds?
Re:Applying the same logic (Score:3, Insightful)
A song that was really really short (like a few notes) would probably fail the originality test.
I wouldn't say that (Score:3, Informative)
In the United States, any sampling is considered a violation of copyright. [music-law.com]
why isn't this fair use? (Score:2)
Re:Fair Use ... (Score:3, Informative)
Creating a derivative work for commercial use is clearly copyright violation.
Nope, not if it's parody, or substancially transformative, or fits any legion of other exceptions. Fair use is fair use, except the more money you make the less you can take advantage of it. I can Xerox say a third of the little prince and hand it out in class, no problem. But someone writing a history book can copy maybe three or four pages of the little prince verbatim under fair use.
If you are a television network and your p
Re:Applying the same logic (Score:2, Interesting)
Of course, as soon as this started working, they would try and rewrite the laws to forbid it. And on to the next i
Re:Applying the same logic (Score:4, Insightful)
Re:Applying the same logic (Score:2, Funny)
Re:Applying the same logic (Score:3, Funny)
Re:Applying the same logic (Score:2)
Re:Applying the same logic (Score:2)
Interesting ruling... (Score:3, Insightful)
Re:Interesting ruling... (Score:2, Insightful)
Courts and "binding" rulings (Score:5, Informative)
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.
It is precedent in the 9th Circuit (Score:3, Insightful)
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:
Re:Interesting ruling... (Score:2)
Translation: (Score:2)
Not that I disagee, I'm just saying you can get a sense of the confusion.
Re:Translation: (Score:2)
what constitutes as thumb (Score:5, Interesting)
Re:what constitutes as thumb (Score:2)
An interview with the judge (Posner, IIRC) was linked here but I can't find it.
Re:what constitutes as thumb (Score:2)
The issue is less what constitutes a thumbnail? than what are the circumstances in which it is used?. Fair-use allows exact copying within limits,
Re:what constitutes as thumb (Score:2)
as much as this makes sense... (Score:4, Informative)
eric
*Sigh* The Big Lie Again (Score:5, Informative)
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...
Corporate law (Score:3, Interesting)
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.
So ... (Score:2, Interesting)
Just when is "thumbnailing" thumbnailing? What if I scale an image down 1%? 50%?
While not binding, this is kinda interesting.
Google's Policy (Score:5, Informative)
Remove an image from Google's Image Search [google.com]
I wonder if they will consider changing that policy now?
Leslie Kelly is an IDIOT (Score:5, Insightful)
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
...and you're not all that sharp either (Score:2)
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
Re:...and you're not all that sharp either (Score:2, Interesting)
In our local Professional Photographers Association chapter there are many photographers who see no moral problem with copying MP3s (or, more often,Photoshop!) between themselves, yet scream with indignation when someone copies one of their images digitally from their own promotional website.
What's sauce for the goose is sauce for the gander. The Internet will make your prices come down to the point that stealing your image is more trouble than paying you for it.
Re:Leslie Kelly is an IDIOT (Score:2)
robots.txt (Score:2)
I couldn't read the pdf, so I didn't read the facts.
Courts (Score:5, Funny)
Oh great. Another ruling from the most overturned appellate court ever.
</fat_comic_book_guy_from_the_simpsons>
I think Thumbnails should be ok because.... (Score:4, Informative)
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.)
Re:I think Thumbnails should be ok because.... (Score:2)
Re:I think Thumbnails should be ok because.... (Score:2)
Dr Seuss! (Score:2, Funny)
Thumbnails != art (Score:3, Insightful)
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 (Score:2)
Re:Thumbnails != art (Score:2)
What about when you throw painting or sculpture into the mix? How do you go about copyrighting those? Is it the end result, or the process? If paint a painting, and someone else across the street is watching my every move, and duplicates the same brush stroke
Re:Thumbnails != art (Score:2)
* You create an exact copy of the work and try to sell it as an original. You go to jail.
* You create an exact copy and try to sell it as a reprint. You need the permission of the owner.
* You create a copy of the work that is much smaller, not revealing any small details and of a much lower quality. I don't know whether it's permissible or not, but the last time I was in the Metropolita
Re:Thumbnails != art (Score:2)
That may be so. I must admit that while I have a considerable database of photographs, I never recorded a single song. However, I feel that the technical aspect of taking pictures is as much an art as having a good eye for a composition. I don't think that's the case with music.
As for Photoshop compositions or paintings, I see a gray area here. I have yet to read a
what? (Score:2)
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.
Historical article! (Score:2)
But... surprisingly... not identical
Slashdot is not the place for legal advice (Score:5, Insightful)
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
We have to distinguish between published and unpublished opinions in some districts, but the point basically stands.
3 Judge Panel (Score:5, Informative)
IAAL, but this post is not intended to constitute legal advice. If you need advice, see your lawyer, not Slashdot.
Why was this modded "Funny"? (Score:5, Informative)
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.
Re:Why was this modded "Funny"? (Score:2)
To be clear, a panel decision cannot be reversed by another panel decision. Thus, they can be very binding with no en banc panels to guide the way.
Re:3 Judge Panel (Score:2)
Precident by a 3 judge panel (Score:3, Informative)
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)).
Thumb Me (Score:3, Interesting)
Re:Thumb Me (Score:2)
On Slashdot it is a chronic problem. I often see nonsensical/stupid posts (like the parent) modded to +5.
To set the record straight:
(This is by no means an accurate leagal definition but you get the idea
TRADEMARK [trademark]. 1. A word, slogan, design, picture, or other symbol used to identify and distinguish goods. 2. Any identifying symbol, including a word, design, or shape of a product or conta
Thumbnails discriminate against partially-sighted (Score:5, Interesting)
In short, how many of our laws affect out other laws in unforseen ways?
Assistive technologies (Score:2, Informative)
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.
It IS binding precedent. (Score:2, Funny)
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)
Oo! I gotta idea! (Score:2)
Heh I'm only being half-sarcastic here.
Hey, what about... (Score:2)
what if I make my own? (Score:3, Interesting)
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?!
Re:what if I make my own? (Score:3, Informative)
RTFA--only fair use if doesnt hurt market (Score:4, Informative)
Image Fair-Use Questions (Score:4, Interesting)
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?
Significance of Ariba decision (Score:5, Interesting)
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
What does this mean to MP3s? (Score:4, Interesting)
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?
Re:Precedent (Score:2)