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Quote this post and reply to it Post#1 @ 09-17-03 , 01:01 AM


This is a topic for specific legal decisions, from real cases, about matters of interest to the DiamondTalk community.

Kelly v. Arriba Soft Corporation is a case where a search engine used thumbnail images of a photographers work. It is significant here because of the issue of transformative use of works. The fair use analysis in the revised Ninth Circuit opinion of July 2003 in that case went as follows:

Purpose and character of the use.
The use was found to be commercial and transformative, not of the same type as the original work, because the images were not being sold as pictures but rather were to facilitate the identification of the images in the search engine: "This first factor weighs in favor of Arriba due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images".

Nature of the copyrighted work.
The pictures are a published creative work available on the internet. A creative work favors a finding of infringement. As a published work, the use is more likely to be fair: "This factor weighs only slightly in favor of Kelly".

Amount and substantiality of portion used.
The court found this factor to be neutral: "Copying an entire work militates against a finding of fair use ... If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her ... This factor neither weighs for nor against either party ... It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information".

Effect of the use upon the potential market for or value of the copyrighted work.
This requires considering the effect if the actions were widespread, not solely the effect of the particular user. A transformative work is less likely to have an adverse effect than one which merely supercedes the original: "Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images". The thumbnails would guide people to Kelly's work rather than away from it and the size of the thumbnails makes using them instead of the original unattractive.

Conclusion
Having considered the four fair use factors and found that two weigh in favor of Arriba, one is neutral, and one weighs slightly in favor of Kelly, we conclude that Arriba’s use of Kelly’s images as thumbnails in its search engine is a fair use".

In discussions here, transformative uses are very common.

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Quote this post and reply to it Post#2 @ 09-17-03 , 04:13 AM



What brought this on?


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Quote this post and reply to it Post#3 @ 09-17-03 , 06:58 AM


Because we now have a legal firm as a sponser?


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Quote this post and reply to it Post#4 @ 09-17-03 , 07:04 AM





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Quote this post and reply to it Post#5 @ 09-17-03 , 12:24 PM


What?????


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Quote this post and reply to it Post#6 @ 09-18-03 , 01:13 PM


What prompted it happened some time ago. No need to resurrect an old discussion.

Posting of images from other sites is quite common here and I've occasionally seen people suggesting that it's a copyright infringement to do so. This case is one of those which illustrates why it's very unlikely to be copyright infringement for a consumer to post an image here. That will be a transformative use, not for profit (prevailing on test 1 for fair use); of non-creative work, relating to the facts of a particular product (prevailing on test 2) or marketing material, creative but widely publicised (prevailing on test 2 also); using only the portion required for the purpose at hand, usually (prevailing on test 3); and not affecting the market for the original work, which generally is published publicity material, not for sale (prevailing on test 4).

Anyone who receives such a complaint might consider askng the person making the complaint to explain why they believe that the use isn't fair, in the light of this decision and why their assertion shouldn't be considered to be barratry, a threat of a SLAPP suit, a threat of vexatious litigation or abuse of process.

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Quote this post and reply to it Post#7 @ 09-18-03 , 01:40 PM


Thank you, James


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Quote this post and reply to it Post#8 @ 09-18-03 , 05:07 PM


Good point James! I'm glad to see we're all legal

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Quote this post and reply to it Post#9 @ 09-18-03 , 05:13 PM


>>barratry...<<

Where I often stop on my way home from work.


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Quote this post and reply to it Post#10 @ 09-18-03 , 07:39 PM


That's just because you like the exclusive customers who can get to bars at treys.

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Quote this post and reply to it Post#11 @ 09-21-03 , 11:27 AM


James;

Good to see you back here, hope you'll stick around.

Question: What are the responsibilities/liabilities of a web-site moderator/owner vis-a-vis participant speech on his forum?
Where do you draw the line between free-speech and breach of published community guidelines and rules?

Barry
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Quote this post and reply to it Post#12 @ 09-22-03 , 06:07 AM


Good to hear from you, Barry.

Recall that I'm a moderator in assorted places elsewhere but am commenting on moderation here. That places me roughly in the position of you in the store of another diamond vendor, commenting on the quality of the goods they are showing a customer. You could do it but it might, perhaps, not be the most appropriate thing to do when they are in the process of closing the sale.

In general, though, a key job of moderators in an open forum is to encourage fruitful participation by all, selecting the best mixture of techniques for the specific individual whose behavior is problematic. Flexibility and consideration of the specifics is always required. Being very specific about acts and penalties is unhelpful, in my view, because it tends to encourage rules lawyers rather than attempts to comply with the spirit of the rules.

The precedents against liability for board operators as a result of the actions of others are very strong. So strong that one response to bringing an action might be an ethics complaint against the lawyer acting on behalf of the complainant, unless there's some significant novelty in the arguments being used. However, the operators of sites do get to try to reduce their risks further. The decision of where to draw the line between acceptable legal risk and unacceptable legal risk is one for the site operator.

A few interesting cases to consider (and for any lawyer to consider if asked to contemplate participating in an action of this sort) are:Since even completely ignoring a complaint has been found not to garner liability, it's very clear that providers are effectively Teflon coated and almost nothing has the potential to stick. There are a few possible ways to penetrate that shield but they won't apply here.

As a practical matter, most site operators will end up choosing taste boundaries which are more restrictive than the boundaries they could choose if they wished to allow all of the flexibility supported by the precedents.

The First Amendment doesn't apply to private establishments of this sort. It exists to the extent that the operator desires it to exist. It's generally very strongly desired in most places which are not dedicated to and/or operated by a single company for its own benefit. That's because a strong respect for freedom of speech tends to be good for the operator of the site, not because it is required.

I'm not a lawyer and no part of this post should be taken as legal advice.

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