[xg15]

> My quick read of it seems that if they can come up with some kind of argument that they are selling derivative work (including perhaps some kind of unique identification layer, or meta data perhaps ... ?), OR that they are selling a reproduction. tenuous, but that may be their justification.

Wouldn't this make all electronically transmitted media into "derivative works", though? This sounds like such a reading would make the concept meaningless (and also possibly contradict the outcome of other infringement/attribution cases)

[imajes]

as broad as that yes, but if you enhance the work during transmission (e.g. by including meta data about the work) you may be able to argue derivation. i think it's an area where clearly technology and the ability to reproduce like-for-like fails the reading of law as it stands today.

[xg15]

This still seems shaky to me: wouldn't then, e.g. the Google image search pipeline perform an enormous number of copyright violations every day? They download images from a huge number of different rights holders, store them on google servers, recode them to produce thumbnails and distribute the recoded images via the image search UI. By your logic, they'd have to ask every single rights builder for permission to create derived works before they can include their images in image search.

Additionally, every time I download something from the web and store it on my hard drive, my OS will enrich it with metadata: file name and path, timestamps, local user, permissions, etc. So unless a site author grants all visitors the permission to create derived works, I'd be infringing just by visiting their web site.

Finally, if you assume that only some metadata counts as creating a derived work, Getty would have to prove that all users they threatened did in fact use Getty's "enhanced" version of the image and not the original. I find it very unlikely that the photographer herself would have used Getty's version and not herselfes, so I don't think they did that.

[mthoms]

I'm not sure about your other points but image search thumbnails have been found by the courts to be fair use. https://www.eff.org/cases/kelly-v-arriba-soft