Should the photographs be considered intellectual property and subject to copyright protection?
US copyright laws imply that a photographer or artist does not need to certify and state that his or her work is protected by copyright; it becomes so as soon as the artist makes and displays her work. The case of Ditto.com has several issues to it. As the judge in his ruling states, the gathering of the information about all photographs on the internet and listing them cannot be a legal issue at surface. When an artist makes some artwork and displays it somewhere, he or she intends to make it seen, either for commercial purposes or other. Now Ditto.com crawls the net and gathers all those artworks that are there on different websites for display for sale or for recognition. In this regard, Ditto is actually helping the artists rather than damaging their interests.
Now issue is whether providing the full-size image of the photograph justified or not. Many photographers do not allow full size image for the review. If they do, it is through the main webpage where it is displayed and the user is not allowed to copy the image. Here Ditto.com seems to be exploiting the access to the image. This is definitely an ethical issue, if not legal. Only the original website is supposed to display the image for review, such that it cannot be copied. If Ditto is copying the image, and then bypassing the original webpage, it is exploiting the commercial and contractual rights of artist and the webpage.
Is size reduction a sufficient transformation?
The issue of transformation of the images; making the thumbnails, does not seem to be taken at length in court ruling. Making thumbnails is not a major transformation or expression in a new way. A thumbnail is just a reduced sized image of photograph. Most of the original web pages that artists use to display their works also show them as thumbnails. They have right to display them and the buyer is supposed to browse through the web page. Here again, the court ruling justly imply that Ditto does not lose on legal grounds. But one feels that Ditto does lose on ethical grounds. This is just another instant of finding the grey areas in laws that are supposed to be followed in substance rather than form.
Is indexing of the images a violation of property rights?
Stated that, it is questionable that whether those images that are displayed through some website and only that website has legal rights to display them, should or not be indexed by Ditto. This is imperative that artist and the website entered into an agreement, a legal contract precisely, that gives that website the right to display those images. This does make a copyright issue. Ditto is using these images for commercial uses. It displays them, provides search engine and makes money. But this is important to note that a user will still go to the original website where the image was displayed to buy the image or obtain information about it. Deep linking in this case is only making it easier for the buyer. Hence, again it seems to be in benefit for the artist, and the website itself.
One can also question the Ditto’s search engine in light of artists’ property rights. An artist may not have chosen to display the photograph at any webpage, and search engine may take it from some online news article. Here providing the image without the artist’s permission is completely unethical. An analogy can be drawn with Napster’s or others like Google. Google’s image search also displays many thumbnails of images that are protected by copyright. Law may not be able to give protection, but morals do stand against such act.