Re: [Fwd: Memo on video game thumbnails]

[Ben Finney <ben+debian@benfinney.id.au>]

"Paul Wise" <pabs@debian.org> writes:

> On Fri, Aug 8, 2008 at 11:46 PM, Ben Finney <ben+debian@benfinney.id.au> wrote:
> 
> > Could you instead please give us the *text* of their response? That
> > would make it much more accessible to followers in this discusion.
> 
> Minimally reformatted version below:

Thanks very much!

> 2. Copyrightability of Video Game Screen Shots
[…]

>          A thumbnail is a copy of an image […] not likely to be
> considered a creative expression on the part of the person creating
> the thumbnail. In the typical case, then, there would be no
> copyright in the thumbnail image separate from the copyright in the
> original, full-scale image. The author of the original image, as the
> sole owner of copyright, can therefore decide whether or not to
> create, or permit others to create, thumbnail images.

This seems sensible, so it's reassuring that legal counsel has reached
this conclusion also. It's not so good that it would be this way, but
it follows logically from the power that the copyright holder has
anyway.

>          Since the question of whether there is infringement in most
> cases is not at issue, the major court decisions on thumbnail images
> usually center on the fair use exception. We understand that Debian
> generally cannot rely on fair use to allow it to offer the thumbnail
> images. Nevertheless, it still may be helpful to review the current
> law on the subject.
> 
> 3. Fair Use
[…]

>          We understand that Debian intends the thumbnails to be used
> in tandem with descriptions of the games within an application that
> describes what games are available to be used on the operating
> system. The use of the thumbnails in the games-thumbnails package is
> most likely fair use as the use of the thumbnail images in this
> context is analogous to the search functionality employed in both
> Kelly and Perfect 10 and the use in advertising used by the
> defendant in Bleem. However, this protection may not extend to other
> users and developers that may choose to employ the images for other
> infringing uses that may fall outside the fair use exception. Debian
> will, thus, not be able to distribute the thumbnails images under a
> "free" license which would have allowed downstream developers to use
> the thumbnails for any purpose.

This doesn't address the broader issue of how such cases would be
treated in jurisdictions that follow the Berne convention, but have
nothing comparable to the US "fair use" doctrine.

This was perhaps not what the SPI legal counsel was asked to discuss.
It seems quite germane, though I wouldn't know where to begin asking
for an answer useful to the Debian project.

> 4. Conclusion
> 
>          Given the potential of infringing acts by a downstream user
> of the thumbnails distributed by Debian, we recommend that Debian
> distribute the images under the same license under which it
> distributes the underlying game code.

I'm confused by this. The preceding section just finished by saying:

> Debian will, thus, not be able to distribute the thumbnails images
> under a "free" license which would have allowed downstream
> developers to use the thumbnails for any purpose.

Doesn't this contradict the recommendation that Debian "distribute the
images under the same license under which it distributes the
underlying game code", if (as is supposed to be the case for all
packages in 'main') that license *is* a "free" license?

-- 
 \     “I went camping and borrowed a circus tent by mistake. I didn't |
  `\      notice until I got it set up. People complained because they |
_o__)                           couldn't see the lake.” —Steven Wright |
Ben Finney