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Beet.TV’s Andy Plesser asks: is Microsoft’s Bing search playing fast and loose with fair use? Specifically, Andy points out that Bing displays “live,” or perhaps more accurately “dynamic,” thumbnails in its video search results, and users can “watch the entire video as a thumbnail, with sound.” Andy notes Bing “appears to pull a media RSS feed which is stripped of advertising overlays,” but “does provide a link to the original source.” “This is the broadest implementation of ‘universal video search’ by a major company we have seen,” he says.

Since 2002 it has been pretty well accepted in the U.S. that search engines can properly display thumbnails of images in search results under the fair use doctrine. Crucial to that result though is the fact search result thumbnails do not “supplant the need for the original” or harm the market or value of the images as used on the original site. (See the Ninth Circuit’s Kelly v. Arriba Soft decision) In fact, thumbnail images in search results were found to help the market or value of the images by

guid[ing] users to [the site] rather than away from it. Even if users were more interested in the image itself rather than the information on the page, they would still have to go to [the] site to see the full-sized image. (Kelly)

Bing presents an interesting twist on this, and the question is: is displaying a thumbnail rather than full-sized video enough to trigger fair use? Here, I think the argument is stronger than in Kelly that the need for the original is supplanted. Full length thumbnail videos with sound strike me as more likely to serve as a complete substitute for the original than a thumbnail image, and if I’m right, fewer users would be guided to the original site by the search engine (in fact, they’d be discouraged from clicking through). The thumbnails also impair the value of the original by removing the originally included ads.

On the other hand, Bing’s video search could be fair use if the videos are embedded and/or inline linked rather than copied. (That doesn’t sound like what’s going on, particularly given the ad removal, but I need more info.)

I’d be curious to hear more from others, including Fred von Lohmann at EFF, about Bing’s video search and fair use.

Article Source: ZDNET