Re: Re: more trouble with thumbnail images?

Rest assured that Judge Matz was aware of the 9th Circuit's decision in Kelly. He cited it and and analyzed it in his opinion. In weighing the 4 fair use factors, the 9th circuit concluded were 2 favored Arriba, 1 for Kelly and 1 was even.
"Arriba's use of Kelly's images also would not harm Kelly's ability to sell or license his full-sized images. Kelly does not sell or license its thumbnails to other parties. ...
Therefore, Arriba's creation and use of the thumbnails does (sic) not harm the market for or value of Kelly's images.... Having weighed the four 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 fair use"

Judge Matz on the other hand concluded "...Google's use of thumbnails does harm the potential market for the downloading of P-10s reduced size images onto cell phones"
Even if that were the only difference, it is significant difference. I would not characterize plaintiff's expectations as "silly" Jim Brennan

On 2/23/06, David Dailey <david.dailey[_at_]sru.edu> wrote:
>
> At 05:05 PM 2/22/2006, David Alan Bozak wrote:
>
> >Judge Issues Injunction Against Google Over Photos
> >[...snip...]
> >http://news.com.com/2100-1030_3-6041724.html
> >
> >-dab
>
> What?! Hasn't the judge heard of Kelly v Arriba. I thought this issue
> had been resolved. The only thing that seems different to me in this
> case is that the current plaintiff licenses thumbnail sized images to
> a mobile phone company -- hence a possibility of financial damage to
> plaintiff which didn't exist in Kelly.
>
> But, since the court system had already decided thumbnails were fair
> use, the mobile company was rather silly to enter into an agreement
> to send money for stuff which by juris prudence should be freely
> available in the first place. Plaintiff was silly to expect revenues
> from this in the first place, based on existing case law.
>
> I continue to believe that thumbnails are to images as summaries are
> to texts. Protecting either is a first amendment issue and
> overextends the constitutional limitations of copyright.
>
> David Dailey
>
>
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Received on Sat Feb 25 2006 - 03:10:01 GMT