IP: Brenda Sandburg on Internet copyright case involving thumbnails, but also linking and framing

[David Farber <dave () farber net>]

> Date: Fri, 8 Feb 2002 12:15:12 -0800
> To: farber () dsl cis upenn edu
> From: Denise Caruso <caruso () hybridvigor org>
>
> Dear Dave,
>
> Don't know if you saw this yet. Forwarded to me from Center for the Public 
> Domain, http://www.centerforthepublicdomain.org/.
>
> For the list if you'd like.
>
> Best,
> Denise
>
> http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=la 
> w/View&c=Article&cid=ZZZF07DWDXC&live=true&cst=1&pc=0&pa=0&s=News&ExpI 
> gnore=true&showsummary=0
> > >  Bigger Not Better With Copyrighted Web Photos
> > >
> > > Brenda Sandburg
> > > The Recorder
> > > February 7, 2002
> > >
> > > Search engines can display "thumbnails," but not full-sized images of
> > > copyrighted works on their Web sites, the 9th U.S. Circuit Court of Appeals
> > > ruled Wednesday.
> > >
> > > Setting parameters for copyright infringement on the Internet, the court
> > > found that reproducing photographs to create thumbnail images is a fair use
> > > of the material, but displaying full-sized images violates the copyright
> > > owner's exclusive right to publicly display his works.
> > >
> > > In Kelly v. Arriba Soft Corp., 00-5521, a photographer claimed the search
> > > engine Arriba (now named Ditto.com) violated his copyright by reproducing
> > > and displaying images without permission. A lower court ruled that such use
> > > of Kelly's works was a fair use exception to the Copyright Act.
> > >
> > > Regarding the thumbnail images, the 9th Circuit said Arriba's use of Kelly's
> > > photographs was transformative -- improving access to information on the
> > > Internet -- and did not harm the market for Kelly's original images.
> > >
> > > But the court found that displaying the full-sized images through linking
> > > and framing was not transformative and harmed the market for the original
> > > photographs.
> > >
> > > "While it was necessary to provide whole images to suit Arriba's purpose of
> > > giving users access to the full-sized images without having to go to another
> > > site, such a purpose is not legitimate," Judge Thomas Nelson wrote. The 9th
> > > Circuit sent the case back to the district court to determine damages for
> > > copyright infringement and whether an injunction is necessary.
> > >
> > > "It's a validation of advancements in technology," said Arriba's counsel Jud
> > > ith Jennison, a partner in the San Francisco office of Seattle's Perkins
> > > Coie.
> > >
> > > She said there is no evidence that anyone accessed the full-sized images of
> > > Kelly's works through Arriba's site and that this would be relevant to the
> > > question of damages. Jennison also said the issue of inline linking and
> > > framing was not a key point to the case since Arriba had abandoned the
> > > practice years ago.
> > >
> > > But other IP attorneys regarded this as the crucial part of the 9th
> > > Circuit's ruling since it appears to be the first time an appellate court
> > > has addressed inline linking and framing.
> > >
> > > "This is a fascinating case," said Annette Hurst, a partner at Howard, Rice,
> > > Nemerovski, Canady, Falk & Rabkin in San Francisco. "It's basically going to
> > > do away with linking or framing without permission."
> > >
> > > _______________________________________________
> > > Random-bits mailing list
> > > Random-bits () lists essential org
> > > http://lists.essential.org/mailman/listinfo/random-bits
> --
> Denise Caruso
> Founder & Executive Director
> The Hybrid Vigor Institute
> +1 415.543.8113 vox/fax
> http://hybridvigor.org

For archives see:
http://www.interesting-people.org/archives/interesting-people/