>Actually, this is one of a number of links out there (esp. regarding the
>Arriba Soft case) suggesting that fair use, regarding thumbnail images,
>is quite often the applicable standard, the key (often) being that there
>is no "Effect of the use upon the potential market for or value of the
>copyrighted work".
>

I'm not trying to argue against the heart of your argument, just perhaps suggesting that we should be careful about terminology.  Fair use of something is not the same as saying the source is not copyrightable.  It's an important distinction to keep.  It is, after all, how licenses are enforced.  It's fair use for me to cite a passage.  I may even be able to reproduce the whole work under the conditions of a license.  This does not immediately propagate downstream to those who might copy my work.

>It's just depressing to me that the society, in the shadow of DCMA, RIAA
>action, etc. has essentially cowered in the face of these copyright
>issues, and I would go so far as to say the we librarians often abrogate
>our duty. I mean it is our job to *create* access to information
>not *prevent* it. Right? Geez, nothing like the free flow of information
>getting privatized. My aim is just to promote the idea of assuming that
>"information wants to be free" and proceed under that assumption unless
>there is clear and obvious proof otherwise.
>

I agree that many have let fear blind themselves or make themselves hesitate from providing certain services.  But at the same time there still is a lot that is undefined or tenuous.  It doesn't help to cite material that talks about creating thumbnails as fair use and then take another step and claim thumbnails are not copyrightable.  If you're going to make that next step, it would be nice to see material supporting it.

I agree we have a responsibility to our users and I do feel that universities and other academic organizations should be fighting even on legal fronts to protect reasonable use (such as using thumbnails and automatically derived metadata).  However, as reasonable individuals we also do have to evaluate the best ways to do this and likelihood of legal ramifications and their costs.  If you believe in this there are plenty of ways as well as possible civil disobedience.  You can lobby congress and the copyright office to establish laws and policies to protect this use.  Certainly, risking an institution's financial and legal status this day and age should be carefully considered.

>Looked at another way: a thumbnail is just a bit of "visual" metadata,
>and you cannot copyright metadata.

At what point does something become a thumbnail?  50%?  75%? 100% but with poor resolution?  If it's cropped?   Missing colors?  I would also point out there are many who include the work itself as metadata, in which case it most certainly falls under copyright.  Certain visualizations may also fall into a gray area, regardless if the source is text or an image.

The cases seem to to me to point to two important poitns.  First, Google is not responsible when it creates fair use thumbnails of someone else who has already infringed.  The infringement only applies to the original person who copied the image.  I'm not sure how this compares to other case law at this point.  I'm also not sure how it would deal with a service that refused to take down the derived thumbnail if the original image is illegal or violating copyright.

Second, if someone used Google's service to profit on their own end (took the images and then sold them) the judge might regard that as not fair use.

But again, I'm not a lawyer.  So I'm going to stop thinking about this particular issue right now.

Jon Gorman