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Re: [dvd-discuss] An interesting case from 9th Circuit Appeals court

This seems to me to be a rather strange decision.

The fair use exception to the creation of the database seems right. This 
means that a person can create a thumbnail database and allow other's to 
access it.

However if you cannot click on the link to view the image what is the 
difference between that and clicking on Yahoo links, or AskJeeves links when 
the linked page is opened within a frame.

I think it is important not frame this problem as a copyright question, but 
an unfair competition question. What profit is the Arriba getting as a 
consequence of Kelly's photographs that Kelly would otherwise get.

It certainly seems likely that Kelly and if not Kelly, a number of 
photographers benefit from a comprehensive database of searchable photographs 
which would put more users in contact with their work and thereby increase 
the potential commercial use of the photographs and the photographer. Arriba 
are therefore providing a valueable service and in order to provide it they 
may need advertisments or subscriptions or something through which this can 
be done.

If Kelly is putting pictures on the internet that can be downloaded by anyone 
and thereby making his copyrighted works available to anyone, even if he 
wants to prevent that from happening, complaining that these items can be 
found more easily and that is someone else's fault is ingenuous in the 
extreme. You only have to write specimen across them or something similar to 
make them unusual for most purposes after all.

If there is some sort of protection which the Arriba link is avoiding, then 
Kelly might be losing something.

So it follows that at this stage if the court is merely going to have to 
investigate what is the loss and on finding none, dismiss the suit fine. If 
not then at the very least those little summaries of pages you find on Yahoo 
are in trouble (since they might not be fair use, words and pictures are 
handled differently) and AskJeeves' business model is trouble.

Anyone ideas why Ticketmaster v. Tickets.com 54 USP Q2d 1344 (C.D.Cal.2000) 
was not relied on more strongly here?