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Is it illegal to download a watermarked image?

  • I'm talking about those previews you get when browsing non-free stock images.
  • Specifically asking about the act of downloading those watermarked previews.
  • Not making modifications. Not distributing. Not manipulating. Not circumventing copyright.

Example of watermarked image:

https://www.shutterstock.com/image-photo/diverse-business-people-meeting-partnership-579884275


I'm reading on shutterstock's legal page (their words my emphasis)

You agree not to copy, republish, frame, link to, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer the Site or any Shutterstock Content. In addition, you agree not to use any data mining, robots or similar data and/or image gathering and extraction methods in connection with the Site or Shutterstock Content. https://www.shutterstock.com/terms


I'm confused because when you are any preview that has a watermarked image your computer is still downloading it in the web cache somewhere on your hard drive. Technically the computer is downloading it whether you want it to or not.

Clarify in your answer how a computer downloading it in it's cache is any different than right clicking on the image to download if it is indeed illegal to download these preview images.

  • Today's word is "unconscionability". – cHao Jan 29 '18 at 20:13
  • Copying for practical necessity in the function is a computer is explicitly permitted for software, and presumably digital content as an extension, where copying would otherwise be infringement. Again, read the basics first! – Nij Jan 29 '18 at 20:14
  • @Nij I read that but it didn't seem so black and white to me in this context. What I don't understand is it's out there publicly where you can view it without purchase. So how is downloading the watermarked image any different? – LateralTerminal Jan 29 '18 at 20:21
  • @cHao if this is a painfully obvious and just a bad question I'll delete my question. But it just didn't seem very obvious to me. – LateralTerminal Jan 29 '18 at 20:21
  • @LateralTerminal: It's not painfully obvious until you realize they couldn't enforce a "no downloads, period" rule if they wanted the site to function. So extreme an interpretation of the TOS would criminalize every active user of the site, so any attempt to use it in court to sue someone over a cached image would get thrown out as unconscionable and thus unenforceable. – cHao Jan 29 '18 at 20:32
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You do not have permission of the owner to do more than you are allowed to do by copyright law.

Assuming that fair use/dealing doesn’t apply, the law doesn’t allow you to copy the image. However, transient copies that are a necessary requirement of the technology (like an image in a web browser) are not considered copies under the law.

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For US copyright law, see 17 USC 117(a), which says:

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Two relevant facts: you are not the owner of a copy of a work, and the work is not a program. So the "essential step" exception does not apply.

You therefore require permission from the copyright owner. Limited implicit permission is granted by the supposed rights holder: they provide a link that you can click which causes their server to send a copy to you. In general, if you stick your stuff out there openly on the internet and say "here it is, click and see what we offer", a reasonable person would interpret that as meaning "you may see it using your browser". This is permission is explicitly given in their TOS 2.1

Subject to your compliance with these Terms of Use, any applicable license agreement with Shutterstock, and the law, you may access and use the Site.

"Download" is not defined, so it would be given its ordinary meaning (not a somewhat more technical meaning used by someone who understands the technology of web browsers): it means "deliberately save a permanent and findable copy". Your browser does not "download" a picture when it displays an image, in the intended sense. You probably will have a copy of that file in you image cache for quite a while: it could easily outlast a deliberately downloaded copy which you used for a few minutes then deleted. But people don't normally know how to find cache files.

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