Is Inline Linking To An Image Copyright Infringement?

from the i-don't-think-so... dept

Copycense points us to a writeup by a patent attorney named Steve O'Donnell about copyright and blogging. Why a patent attorney is writing about copyright is not clearly explained. Initially, since the title of O'Donnell's post was "How many copyrights does your blog infringe?" I thought the post might be one of those blog posts that reminds us how frequently everyone "technically" infringes on copyright incidentally and how this demonstrates how screwed up copyright law is. But, no, instead, this appears to be a serious "warning" claiming that most bloggers are risking the potential of $150,000 fines by using images they find online.

Copycense points out the irony that O'Donnell uses an image in the post itself and notes that the image appears to be in the public domain, but isn't sure. However, I think a bigger issue with the post is hidden in this sentence:
If you find a picture on Flickr, another blog, or somewhere else online and upload it to your own blog (or worse yet, inline link to it from your blog) without permission, you're committing a copyright violation.
First of all, that's not necessarily true. Obviously it depends on lots of other factors -- but I really question the parenthetical. Would inline linking (usually called "hotlinking") to an image be copyright infringement under any circumstance? I understand that it's considered rude and generally frowned upon in internet circles (and, in some cases the hoster of the original file will "get back" at the hotlinker by changing the image to something different... and potentially nasty). But is it copyright infringement? Technically, a hotlinked image is no different than a link to an image. The difference in code is minimal. The image itself is never "copied" onto your server. All you are doing is telling a computer to go visit the original version of the image, which was put there on purpose.

We've had similar discussions in the past about whether or not it could be copyright infringement to embed an infringing video on your site -- and the situation is basically the same with hotlinked images. The content still resides on the original server and is not copied to the new server at all. If the content itself is infringing, then perhaps there's a (really, really, really) weak case for contributory infringement, but in O'Donnell's post, he seems to be implying that even hotlinking to an authorized image would be copyright infringement, and I just don't see how that makes sense from a technological or legal perspective at all.


Reader Comments (rss)

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  1.  
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    Ima Fish (profile), Jan 6th, 2010 @ 7:32am

    As I already explained, the answer is no.

     

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    senshikaze (profile), Jan 6th, 2010 @ 7:48am

    im pretty sure if you talk to the right idiots, err, lawyers, they would say all speech and thought and everything is infringing and you owe them lots of money.

     

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    The Anti-Mike (profile), Jan 6th, 2010 @ 7:56am

    Well, it's a bit of a tougher question to answer, because there is still a legal hole when it comes to websites.

    The hole: Is a webpage an integral publication, or is it something else?

    When a user looks at a page, they see an integral page. They see it as one published page (for that second). Yet, many of the elements can come from third parties (see the issue with playlists and myspace to see how that goes to crap). But the user doesn't know (or doesn't care).

    In inline (hotlinked) image appears to be part of the website. As such, is the image "published"? It's an important legal question, because publishing or republishing is one of those terms / concepts that can trigger a claim of copyright infringement.

    Another way to look at it might be this:

    if you own a website, and you inline link 300 pictures of child porn, are you a child pornographer? I would say that you are very likely to find yourself spending time in a small, locked room with a guy named Bubba for about the next 10 - 20 years.

    So if that act would get you in legal crap, why would it be any different for any other inline image?

     

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    Richard (profile), Jan 6th, 2010 @ 8:00am

    Permission

    If you put something onto the web then you have de-facto given permission for anyone to view that content.

    Therefore you have given permission for all the acts of copying that are (or could be) involved in viewing said content. (Straightforwardly on the originator's website.)

    Any activity (such as linking to an image) which does not of itself involve copying is simply not covered by copyright (the clue is in the name - it's COPYright not LINKright.)

    The copying activity involved is EXACTLY the same as what happens when you view the content on its native site - and de-facto permission has already been given for that.

    To infringe copyright law you have to make a copy that was not authorised.

     

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  5.  
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    Anonymous Coward, Jan 6th, 2010 @ 8:00am

    Copyright and patent is the same thing anyway. Like I just copyrighted my custom denim pants, now no one can copy it.

    What? I can't do that?

    Shut up.

     

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  6.  
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    Trails, Jan 6th, 2010 @ 8:02am

    A note about how the web works

     

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    anon, a mouse cowered, Jan 6th, 2010 @ 8:03am

    I was particularly bemused by this bit:
    "If you find a picture on Flickr, another blog, or somewhere else online and upload it to your own blog (or worse yet, inline link to it from your blog) without permission, "

    A bit clueless to state that a link is *worse* than grabbing an image and publishing it with NO indication of who the original creator was.
    Or maybe this is lawyer concept of worse as the "grab" approach is presumably less likely to be noticed and so less likely to get a lawyer excited about the potential of scaring someone into thinking they are doing something wrong when they are not.

    At least with a link it is apparent where the original image is served from and any half interested / vaguely competent person can easily visit the appropriate site of the original image creator if they like the image - not the case with a direct image grab ..

    The only scenario where "grab" is better is when you credit the creator of the original image and give a link to their site - in that way you do not hammer someone elses bandwith but you do give them full credit and make it easy for someone to go to their site and see their original works... But I am betting this was not what he was thinking of when he said a link was worse.

     

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    Ima Fish (profile), Jan 6th, 2010 @ 8:06am

    Re:

    "if you own a website, and you inline link 300 pictures of child porn, are you a child pornographer? I would say that you are..."

    You could be charged and convicted, but you would even if you merely linked them, i.e., not hotlinked them. Either way, you'd be distributing the illegal porn.

    Think of it this way, if you pay someone to pick up drugs and then sell them, you're still a drug dealer even if you've never actually touched the drugs. Even if they were not in the same room with you. Even if they were not in the same state as you.

    But with direct linking and hotlinking, you're never making the copy of the copyrighted material. So there is no infringement on your part.

    To put it another way, our anti-porn laws are not analogous to our copyright laws, so I don't think this is relevant anyway.

     

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    :Lobo Santo (profile), Jan 6th, 2010 @ 8:10am

    Re: Re:

    Think of it this way, if you pay someone to pick up drugs and then sell them, you're still a drug dealer even if you've never actually touched the drugs. Even if they were not in the same room with you. Even if they were not in the same state as you.
    No, that makes you an investor. ;P

     

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    Trails, Jan 6th, 2010 @ 8:11am

    A note about how the web works

    Assume you go to a website, with an image on it. Your browser sends a request to the server, and the server copies the image's data into the network stream.

    The web works by having servers copy and distribute data. The concept that copyright applies implicitly, or that images online aren't already out there is stupid.

    Putting something on the web means your server is creating and distributing copies of it. When one hotlinks, it's still the original poster's server that creates the copy, not sure how the hotlinker could be considered to have copied in any sense, since the image is requested by the end user and merrily copied and distributed by the server.

     

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    Michael, Jan 6th, 2010 @ 8:11am

    Re:

    Ok, let's use your child porn example.

    To be clear - I think the guy you are talking about should get locked up.

    However, what if you link to 300 images of flowers (that are in the public domain) and then a couple of days later, the images are changed on the original server (same file names and locations) to child porn without your knowledge?

    If you have no control over the actual content, it seems like you should be protected.

     

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    drone, Jan 6th, 2010 @ 8:15am

    There are situations, yes

    As an amateur photographer, I've run into situations where this has impacted me, and I've been forced to ask certain individuals to remove inline images of mine from what they've been using it for.

    I don't publish my work with creative commons licenses or such, I make it clear that I own all copyrights, and give no 3rd party any direct rights for use. However, I let people hot link images for PERSONAL use (i.e. backgrounds on myspace, etc.) but every now and then I find people using them for commercial purposes - such as in ebay ads for unrelated things. For me, it does matter as I do sell prints regularly, and the risk of confusion would do harm to my ability to sell prints as original works of art.

    In any case where I find someone inlining my images in relation to commercial usage I write them very quickly to ask them to remove the image and request permission in the future before using it in relation to any commercial purpose. (Which most undoubtedly will be refused.)

    And, yes, most certainly, ANY time someone appropriates one of my photographs and uses it as-is* for some commercial purpose of their own without first seeking my permission, it is copyright infringement.

    Is it better that they inline the image from my site, so I know who's doing it? I guess it's easier for me to determine who to talk to - but I wouldn't say that it's better or worse.

    * - yes, I am in support of the right to create derivative works, just not people wholesale lifting my work.

    !c

     

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  13.  
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    Anon. Cow., Jan 6th, 2010 @ 8:19am

    What about §106(5)?

    While I think O'Donnell is spouting shit, you should also attack the "display(ing) the copyrighted work publicly" argument and not only the §106(1) (copying) argument.

     

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    dnball (profile), Jan 6th, 2010 @ 8:22am

    inline linking as copyright infringement

    Why don't you all just look at the law? See http://j.mp/6uRdpb .

    In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made.

    Publishing an inline link that links to a photograph residing on some other server results in the display of the photograph on the originating site [which is not controlled by the photograph copyright owner].

    Assuming that the photograph is not in the public domain and assuming that the display of the photograph on the originating site is not a "fair use," then the act of publishing the inline link IS most certainly an infringement of the copyright in the photograph.

    It is irrelevant that techies do not like this result. If you don't like the law, change it. Don't deride those of us who're trying to make sense of it.

     

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    Richard (profile), Jan 6th, 2010 @ 8:23am

    Re:

    It's simple - the grab IS infringement the link isn't.

    The grab involves unauthorised copying the link doesn't involve copying at all.

    How can anyone not "get" this?

     

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    drone, Jan 6th, 2010 @ 8:27am

    additionally...

    I think you are muddying the water slightly with the phrase "inline linking" as if using an image inline in your web page was somehow logically equivalent to providing a hyperlink to image. It is NOT the same in any sense. To provide a hyperlink to an image is to clearly indicate the image is from somewhere else, to simply use it inline with an img tag only makes it appear -to the average user- as if it were part of the content produced for the given page (unless clearly attributed otherwise).

    To presume that EVERY user understands that the content shown on the page they are currently seeing may be drawn from multiple sources, and that they should examine the HTML source, and follow all of the inline references to find proper attribution for each bit of content is a big stretch - and a weak defense.

    The truth is: just like you should site your sources when you're quoting parts of their web pages, if you're going to include someone else's image as part of your own content, you should make sure that a) they have granted you the rights to do so, or at the very least b) clearly credit the author of the image. The argument, Ima Fish, that you make on your blog about two uncredited links is weak, because your inlining of the image is NOT a hyperlink in any way. There is a huge difference between an img tag and an href.

    !c

     

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    Richard (profile), Jan 6th, 2010 @ 8:27am

    Re:

    "Well, it's a bit of a tougher question to answer, because there is still a legal hole when it comes to websites.

    The hole: Is a webpage an integral publication, or is it something else?"

    How is that even vaguely relevant? Copyright is to do with copying not to do with "integral publications"

    If I buy a copy of a book I am free to slice it up with a scalpel and re-constitute it any which way I like - provided I don't make a copy.

     

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    Richard (profile), Jan 6th, 2010 @ 8:31am

    Re:

    if you own a website, and you inline link 300 pictures of child porn, are you a child pornographer? I would say that you are very likely to find yourself spending time in a small, locked room with a guy named Bubba for about the next 10 - 20 years.

    Yes but then so would the guy whose site you linked to.

    The offence is in the material itself - not in the copying of it.

    So this argument is nonsense.

     

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  19.  
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    dnball (profile), Jan 6th, 2010 @ 8:34am

    Re:

    See comment #13 below.

    Your analysis in the article that you've linked to is clearly wrong as a matter of law.

     

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    Anonymous Coward, Jan 6th, 2010 @ 8:35am

    Things should be assumed to be in the public domain unless someone explicitly puts a copyright notice on it. For us to assume that everything is copyright unless we see a creative commons notice on it and to require every blogger to put some creative commons license on their blog is an inconvenience that is a harm to society.

     

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    a-dub (profile), Jan 6th, 2010 @ 8:36am

    "If you have no control over the actual content, it seems like you should be protected."

    Protected only after having your name dragged through the mud in court. This seems to fall under the "ignorance of the law" defence. If anyone had child porn on their website, I doubt the authorities would care if they are hotlinked or not...at least, not initially. You should know what is on your website, and when modifications are made. If hotlinking takes that control away, then its best to not do it.

    There are pitfalls to hotlinking, but from a copyright standpoint, hotlinking appears to be the only method to use since it leads the end user directly to the original content.

     

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    Anonymous Coward, Jan 6th, 2010 @ 8:37am

    Re: Permission

    Besides, if people don't want you copying links they can arrange the website in such a way as to make it more difficult for someone to paste the URL somewhere, click it, and come up with the desired site.

     

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    dnball (profile), Jan 6th, 2010 @ 8:38am

    Re: Re:

    You note: But with direct linking and hotlinking, you're never making the copy of the copyrighted material. So there is no infringement on your part.

    Response: Every copyright owner owns a "bundle of rights" that, collectively, comprise a copyright. One of the sticks in that bundle is the exclusive right to DISPLAY the copyrighted work. An infringement does not require, therefore, that a copy be made. See comment #13 below.

     

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  24.  
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    Jon B., Jan 6th, 2010 @ 8:38am

    Re: additionally...

    More proof that just because someone can spell, that doesn't mean he can think.

     

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    dnball (profile), Jan 6th, 2010 @ 8:41am

    Re: Permission

    You note: If you put something onto the web then you have de-facto given permission for anyone to view that content.

    Response: You're just simply wrong. See comment #13 below. You can pontificate all day about what you think the law should be, but it's not rational to assume that what you want to be true is true.

     

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    BBT, Jan 6th, 2010 @ 8:43am

    Sounds like the lawyer has it backwards. He says linking to the image is worse than copying the image and then linking to your copy. Linking to the image is telling the user "a guy at this address is showing this picture, you can go there and look". That's not infringement. But if you copy and host it yourself, that could be infringement. When they posted the image, they gave you de facto right to look at it and direct others to it, but that doesn't mean they gave you the right to copy it.

     

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  27.  
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    Anonymous Coward, Jan 6th, 2010 @ 8:45am

    Re:

    intuitively that makes sense, well, intuitively intellectual property is bad for society and no one wants it except evil rich corporations, but the law is often non - intuitive. The law usually only favors evil rich people.

     

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  28.  
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    dorp, Jan 6th, 2010 @ 8:47am

    Re: inline linking as copyright infringement

    Publishing an inline link that links to a photograph residing on some other server results in the display of the photograph on the originating site [which is not controlled by the photograph copyright owner].

    All this whining about "techies" and you got the basics wrong. Since the image is "hotlinked" the photographers has complete control of it. If he changes the image or removes it, everyone that has it hotlinked will see the change. The actual internet location of the image can easily be considered as the "display" of the image. If you don't like the technology, that's no reason to perverse existing laws.

     

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    dnball (profile), Jan 6th, 2010 @ 8:51am

    You note: Linking to the image is telling the user "a guy at this address is showing this picture, you can go there and look". That's not infringement.

    Response: You've accurately described a hypertext link but not an inline link. An inline link tells the visitor's browser to access the file residing on the linked-to site and then display it (in the case of a photograph) in the browser. That inline link results in the display of the photograph on the visitors browser. It is that display that infringes the photograph owner's copyright.

     

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    Yakko Warner, Jan 6th, 2010 @ 8:54am

    Well sure, it's obvious.

    The <img src="http://blahblah.com/img.gif"> text is copyrighted! By copying that code and putting it on your own web page, you're committing copyright infringement!

    More so, because that code directs a user's browser to download a copy of that image from the target server and store this copy in the user's computer's memory (and, likely, in cache storage space on their hard drive), you are additionally guilty of inducing your visitors of committing infringement!

    </sarc>

     

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    ChurchHatesTucker (profile), Jan 6th, 2010 @ 8:55am

    Re: Re: Re:

    " An infringement does not require, therefore, that a copy be made."

    Of course it does. They call it copyright for a reason.

     

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    Marcus Carab (profile), Jan 6th, 2010 @ 8:56am

    Re: Re:

    It is relevant in terms of the larger question of technology and copyright. Many people use technological arguments in these situations (such as "no copy is being made - we are merely linking to the original") - but sometimes that reeks of disingenuity. Since the majority of users are not aware that this is a link to the original, and see it merely as a published portion of the page they are looking at, it can be argued that the technological view is more of a loophole than an actual defense.

     

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    drone, Jan 6th, 2010 @ 8:58am

    re: dorp

    In case you guys don't understand the difference between embedding an object what you guys call "hot linking," and providing a link, perhaps as techies you should get your terms correct, and reference the w3c:

    http://www.w3.org/TR/REC-html40/struct/objects.html

    They make it very clear that it is NOT linking, and linking and embedding an object as two different things.

    !c (Who is a techie, and has enough experience with HTML to understand what the tags actually imply to the rendering agent.)

     

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    dnball (profile), Jan 6th, 2010 @ 8:58am

    Re: Re: inline linking as copyright infringement

    dorp,

    So your rule would be that the copyright owner must actively search out and locate all the inline links to every one of his or her photographs published on the internet or else the copyright in those photographs ... what: does not exist? is not enforceable?

    No. Once a copyright knows or has reason to know an infringement is occurring then, and only then, does he or she have a duty to respond. Otherwise creators would spend all their time policing the world for infringements rather than creating more works.

     

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    senshikaze (profile), Jan 6th, 2010 @ 9:00am

    Re:

    you know, you have a really annoying way of replying to people. you know you can talk like a regular person and not an asshole.

     

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    Derek Bredensteiner (profile), Jan 6th, 2010 @ 9:01am

    Re: Re: Permission

    You've certainly brought something up there about 17 USC section 106(5) that I don't think anyone else is responding too, but I don't think you can flat out deny the practical matter of the distributability of something that is placed on the web, regardless of the legal implications of such distribution. Even if it's illegal, it's most certainly very very very very easy, and not necessarily very easy to stop. So your response of "You're just simply wrong" I think simplifies things a little more than what the reality of the situation is.

    All that said, Mike or Ima, got something to say to dnball's 17 USC section 106(5) display argument? I'd like to hear it ...

     

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    Luci, Jan 6th, 2010 @ 9:01am

    Re: Re:

    An explanation of how it is 'clearly wrong as a matter of law' would be appreciated. Blanket statements are usually met with derision.

     

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    Richard (profile), Jan 6th, 2010 @ 9:02am

    Re: Re: Permission

    You note: If you put something onto the web then you have de-facto given permission for anyone to view that content.

    Response: You're just simply wrong. See comment #13 below. You can pontificate all day about what you think the law should be, but it's not rational to assume that what you want to be true is true.


    Why on earth would you put something onto the web if you didn't want anyone to even look at it?


    Your response is simply nonsensical.

    You can pontificate all you like but you can't turn nonsense into sense.

     

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    The Anti-Mike (profile), Jan 6th, 2010 @ 9:04am

    Re: Re:

    But with direct linking and hotlinking, you're never making the copy of the copyrighted material. So there is no infringement on your part.

    I don't think so. If it appeared on your website (as a hotlinked image) it would still be publishing. Publishing, by definition, means that everything on the page was "published". Copyright means the rights holder can choose where his or her images are published.

    Otherwise, you get into a legal sink hole where you host all the illegal images in a place where they are either not illegal or copyright isn't respected, and suddenly you have a website full of material that isn't infringing. That would make no sense. It would allow a 100% end run on all things copyright.

    Again, if the images were of an act that is illegal in the US, but legal in other countries (some countries allow topless / nudity at 16, example), would you be putting up child porn? The answer is yes, because you have published the image. Hotlinking isn't any different, you have published the image, and as such, violated the rights of the copyright holder.

     

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    Derek Bredensteiner (profile), Jan 6th, 2010 @ 9:05am

    Re: Re: inline linking as copyright infringement

    Is the actual internet location of the image considered the "display" of the image? or is it's inclusion on a web page considered the "display"? or is it it's final display on a computer monitor (or is it the code that instructed said computer monitor display? (which code?))?

    I'm honestly confused/curious about this display thing. I've never heard it brought up before, so I can only assume that it's just obvious the actual internet location of the image is the display (as that would nullify the argument a bit), but why is that obvious?

     

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    Luci, Jan 6th, 2010 @ 9:06am

    Re: Re: Permission

    And again, you do not explain why, or what supports your theory. At this point theory is all it could possibly be.

    It does get tiresome having supposed lawyers pop in and say 'nuh uh, you're wrong and I'm right' without ever supporting their statements.

    Until you can support your statements with case law, this is all supposition on both sides.

     

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    dorp, Jan 6th, 2010 @ 9:06am

    Re: Re: Re: inline linking as copyright infringement

    So your rule would be that the copyright owner must actively search out and locate all the inline links to every one of his or her photographs published on the internet or else the copyright in those photographs ... what: does not exist? is not enforceable?

    That's idiotic and has nothing to do with the discussion. If you are the owner of the photograph and the link to it, then you can find out all the linkers without a problem in under a minute, you should know that. If you do not know the link to begin with, then you do not have the control that you claim to have and you have other issues to deal with. You are trying to obfuscate the discussion by combining the question of hotlinking with that of availability of content somewhere that the original owner does not have control to begin with.

    No. Once a copyright knows or has reason to know an infringement is occurring then, and only then, does he or she have a duty to respond. Otherwise creators would spend all their time policing the world for infringements rather than creating more works.

    And the terrorists will win! Why don't you go off-topic some more?

     

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  43.  
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    The Mighty Buzzard, Jan 6th, 2010 @ 9:09am

    Re: Re:

    -1 Flamebait

     

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    T, Jan 6th, 2010 @ 9:12am

    Re: Re:

    Your lack of capitalization offends me, jackass.

     

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    Steve O'Donnell, Jan 6th, 2010 @ 9:13am

    I was wondering why I had such a sudden jump in visitors. Thanks.
    I didn't write the law. If I'm ever asked to, I'll change a lot of copyright law. Statutes change much slower than technology does and copyright law generally does a poor job of dealing with the internet. Sorry, not my fault.
    If you want to inline link to other's images and feel completely above the law, I wish you luck. I'll be interested to see what your court thinks and how much you spend in defense fees.
    If you want to snatch images and upload them to your own server with the hope that no one will care. Again, I wish you luck and will wait to see what a court says and wonder how much you spend in legal fees.
    On the other hand, I'm sure you won't mind if someone takes your image or rides on your bandwidth with an inline link. Actually, perhaps everyone that is ok with that should state so either here or on their website(s) via a CC license. I'm happy to use any images so granted that I can.
    Personally I'd prefer if the default was something like a CC license, but it isn't.

     

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  46.  
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    Richard (profile), Jan 6th, 2010 @ 9:14am

    Re: Re: Permission

    You note: If you put something onto the web then you have de-facto given permission for anyone to view that content.

    Response: You're just simply wrong. See comment #13 below. You can pontificate all day about what you think the law should be, but it's not rational to assume that what you want to be true is true.


    Please read carefully and understand what I did and didn't say here.

    I said you give permission to view the content in it's original form on your site.

    How you can disagree with that statement is beyond me - so clearly you didn't read it.

    Now the issue of displaying a work (but not copying ) that you raise is a slightly different issue - but the point is that the displaying, like the copying is still done by the originator NOT by the linker.

    You are misinterpreting a law which was in any case written to cover a completely different situation.

     

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  47.  
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    Richard (profile), Jan 6th, 2010 @ 9:21am

    Re: Re: Re: inline linking as copyright infringement


    So your rule would be that the copyright owner must actively search out and locate all the inline links to every one of his or her photographs published on the internet or else the copyright in those photographs ... what: does not exist? is not enforceable?


    Most of copyright law is completely unenforceable. As thing's stand a record company would have to visit every home in the country to find out if people are copying their CD's. That doesn't mean that such private copying is legal.

    It is arduous to police copyright - (which by the way is a good reason to do without it). Live with it.

     

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  48.  
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    Anonymous Coward, Jan 6th, 2010 @ 9:25am

    Re:

    You're one of those people who believes that copyright infringement has occurred because my browser keeps a copy of the image in cache, aren't you?

     

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  49.  
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    Steve O'Donnell (profile), Jan 6th, 2010 @ 9:36am

    Also, as Copycense pointed out, I did originally say that the image appears to be in the public domain. I have since edited that line to better explain that the image was published in 1906 and can be found at http://www.loc.gov/exhibits/bobhope/vaude.html

     

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  50.  
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    Richard (profile), Jan 6th, 2010 @ 9:45am

    Re: Re: Re: inline linking as copyright infringement

    You're wrong in law and the courts have recognised the technical arguments that we "techies" are making.

    This from wikipedia

    Copyright law issues that inline linking raises

    The most significant legal fact about inline linking, relative to copyright law considerations, is that the inline linker does not place a copy of the image file on its own Internet server. Rather, the inline linker places a pointer on its Internet server that points to the server on which the proprietor of the image has placed the image file. This pointer causes a user's browser to jump to the proprietor's server and fetch the image file to the user's computer. US courts have considered this a decisive fact in copyright analysis. Thus, in Perfect 10, Inc. v. Amazon.com, Inc.,[5] the United States Court of Appeals for the Ninth Circuit explained why inline linking did not violate US copyright law:

     

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  51.  
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    vivaelamor (profile), Jan 6th, 2010 @ 9:49am

    Technical problem, technical solution.

    Why resort to the law for something so simple? Don't want someone to hot-link your precious images? Add code to reject requests from addresses that haven't got a current session. Alternatively, adopt a walled garden approach whereby every visitor has to go through the front door.

     

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  52.  
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    dnball (profile), Jan 6th, 2010 @ 9:51am

    Re: Re: Re:

    Which is why the first line in my response was "See comment #13 below."

     

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  53.  
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    The Infamous Joe (profile), Jan 6th, 2010 @ 9:52am

    Re:

    So, if I set up a series of mirrors to bounce the reflection of said guy's picture from his house to my house, I'm infringing? Does copyright extend to the actual light that bounces off said picture, or am I free to do with that light as I please? (Like, direct that light to some photo-sensitive film?)

    IP Laws are so silly sometimes. :)

     

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  54.  
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    dnball (profile), Jan 6th, 2010 @ 9:53am

    Re: Re: Re: Re:

    See comment #13.

     

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  55.  
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    Anonymous Coward, Jan 6th, 2010 @ 10:03am

    Re:

    Whether it is image here (hypertext link) or it is image here (inline image link), it is telling the user "a guy at this address is showing this picture, you can go there and look". It's up to the user, and their browser settings, to decide what to do with that information. Most users choose to display links as actual graphics, some users don't. If the user does choose to display the image, they will request the image from the actual image owner. It is up to the actual image owner whether they want to give the user the image file or not. This is why this subject is so foolish. The users are actually going to the image owner and saying "can I please look at this image?" and the image owner is responding and saying "yes, sure, have a copy!" and giving it to them. How on earth could they claim infringement when they are the ones providing the copy?

     

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  56.  
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    Steve O'Donnell (profile), Jan 6th, 2010 @ 10:03am

    Re: Re: Re: Re: inline linking as copyright infringement

    Yeah, you run with that. Outside of the Ninth and even in the Ninth with different facts--good luck to you. Please post back with how much you spend in defense costs.

     

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  57.  
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    ChurchHatesTucker (profile), Jan 6th, 2010 @ 10:03am

    Re: Re: Re: Re: Re:

    "See comment #13."

    WTF is comment #13?

     

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  58.  
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    Chris, Jan 6th, 2010 @ 10:05am

    Re: Re: Re: Re: inline linking as copyright infringement

    And this is awesome news if you happen to live in the 9th Circuit. ;-)

     

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  59.  
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    dnball (profile), Jan 6th, 2010 @ 10:05am

    Re: Re: Re: Permission

    Derek,

    I wholeheartedly agree that because inline linking [and, for that matter, the actual digital reproduction of others' works] is so technically easy that our culture has come to accept to most of it as the norm -- the RIAA, MPAA, and BSA efforts in their industries being the exceptions.

    I litigate intellectual property disputes. And in doing so the law that applies is the law that exists -- not what ought to exist. When you're in a conference room and you have the law so firmly on your side [such as in an inline linking situation where "fair use" does not apply -- and those situations are the bulk of them] then the dispute resolves in favor of the copyright owner. Period. Whether it SHOULD resolve that way is not the issue. That question is one our federal legislature needs to tackle -- with input from the tech community.

    As an aside, the 20 year or so history of digital copyright law can be fairly characterized as a clash between the tech community and the copyright content owners -- colloquially referred to as the battle between Hollywood and Silicon Valley.

    I appreciate your comment and your desire to move this debate along civilly.

     

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  60.  
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    dnball (profile), Jan 6th, 2010 @ 10:08am

    Re: Re: Re: Re: Re: Re:

    Hmmm. The comments were numbered previously but apparently they aren't now. Here's the comment:

    Why don't you all just look at the law? See http://j.mp/6uRdpb .

    In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made.

    Publishing an inline link that links to a photograph residing on some other server results in the display of the photograph on the originating site [which is not controlled by the photograph copyright owner].

    Assuming that the photograph is not in the public domain and assuming that the display of the photograph on the originating site is not a "fair use," then the act of publishing the inline link IS most certainly an infringement of the copyright in the photograph.

    It is irrelevant that techies do not like this result. If you don't like the law, change it. Don't deride those of us who're trying to make sense of it.

     

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  61.  
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    Richard (profile), Jan 6th, 2010 @ 10:09am

    Re: Re: Re: Re: Re:

    You should have looked up the relevant legal precedents before you started pontificating.

    Like this one:
    http://www.eff.org/files/filenode/Perfect10_v_Google/perfect10_order.pdf

    Which includes the following:

    "To adopt the incorporation test would cause a tremendous chilling effect on the core
    functionality of the web—its capacity to link, a vital feature of the internet that makes
    it accessible, creative, and valuable."
    and
    "The Court concludes that in determining whether Google’s lower frames are
    a “display” of infringing material, the most appropriate test is also the most straightforward: the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that “displays” the content."

     

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  62.  
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    dnball (profile), Jan 6th, 2010 @ 10:13am

    Re: Re: Re: Permission

    Luci,

    Case law only applies our statutory law. When statutory law (see below) is clear then case law does NOT, as a legal or practical matter, drive the resolution of a dispute. My "comment #13" is here:

    Why don't you all just look at the law? See http://j.mp/6uRdpb .

    In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made.

    Publishing an inline link that links to a photograph residing on some other server results in the display of the photograph on the originating site [which is not controlled by the photograph copyright owner].

    Assuming that the photograph is not in the public domain and assuming that the display of the photograph on the originating site is not a "fair use," then the act of publishing the inline link IS most certainly an infringement of the copyright in the photograph.

    It is irrelevant that techies do not like this result. If you don't like the law, change it. Don't deride those of us who're trying to make sense of it.

     

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  63.  
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    Anonymous Coward, Jan 6th, 2010 @ 10:14am

    Re: Re:

    Are window makers copyright infringes? Windows provide a new view of the (potentiality copyrighted) content on the other side. Is this new view a new publication? Its obviously not how the copyright holder wanted there work to be viewed. Is it important that window owner could close the shades?

     

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  64.  
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    ChurchHatesTucker (profile), Jan 6th, 2010 @ 10:30am

    Re: Re: Re: Re: Re: Re: Re:

    "The owner of the copyright in the photograph owns the exclusive right to display the photograph."

    Which they have done, otherwise hotlinking wouldn't work.

    It's like suing someone for directing people to your exhibit.

     

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  65.  
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    vivaelamor (profile), Jan 6th, 2010 @ 10:32am

    Re: Re:

    Well put.

    Also, there is nothing stopping a user from modifying their browser so that all image links become inline. This simple fact nullifies the distinction between hypertext links and inline links for all purposes other than web design anyway.

    To suggest that a website should be responsible for providing a service their users already have access to is idiotic and distils the practical argument down to: 'deep linking is/should be illegal', which is a much harder point to argue, not least because there are perfectly reasonable technical measures to solve the problem anyway.

     

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  66.  
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    Andrew F (profile), Jan 6th, 2010 @ 10:33am

    Fraud or tort claim?

    May or may not be a copyright infringement, but has anyone tried a fraud or unfair competition claim? Obviously, these depend more on context, but there might be something there.

    Depending on how it's displayed, hotlinking gives the impression that you, the blog owner, are in fact the owner / creator of the picture in question. This might be particularly problematic if you have a Creative Commons license somewhere on the site, thereby giving the impression that the picture itself is under Creative Commons.

    There might also be something along the lines of unfair competition. I'm not sure INS v. AP is still good law (http://en.wikipedia.org/wiki/International_News_Service_v._Associated_Press), but hotlinking all of your competitor's images for use on your own product seems to be more egregious than what happened in INS v. AP.

     

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  67.  
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    Andrew F (profile), Jan 6th, 2010 @ 10:35am

    Re: Technical problem, technical solution.

    Maybe if you prove damages, you might be able to get some cash -- e.g. it cost $1000 to hire a developer willing to add said code. Or there's the harder to make claim of how the "infringement" resulted in a "lost visitor" to your site who didn't click on one of your ads.

     

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  68.  
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    Anonymous Coward, Jan 6th, 2010 @ 10:38am

    Re: Re:

    Hmm. When ad hominem arguments are all you have then you're just standing there with your d*&k in your hand. Have fun with that.

     

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  69.  
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    BBT, Jan 6th, 2010 @ 10:46am

    Re: Re:

    oops, didn't realize that even with "plain text" selected, HTML would still be recognized. My first sentence of examples was supposed to be with [a] tags and [img] tags (with angle brackets, of course).

     

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  70.  
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    vivaelamor (profile), Jan 6th, 2010 @ 10:46am

    Re: Re: Re: inline linking as copyright infringement

    I'd agree with those saying display refers to where the image is stored. If someone puts a poster up with a picture of a painting and text telling you where to find the painting then that is a display of a copy of the image. If someone puts directions next to a telescope to calibrate it to see the image then they are NOT displaying the image. Not even if they leave the telescope pointed at the image.

    Copying an image to your own server would be like the poster example. Inline linking or whatever you want to call it would be more like the telescope example.

     

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  71.  
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    BBT, Jan 6th, 2010 @ 10:51am

    Re:

    If someone hotlinks to an image I have hosted, it's not "riding my bandwith". I have posted the image and given explicit permission to everyone on the planet to access that file. If I do not want them to access the image file, I can restrict access to it. Linking to the image, whether with a hyperlink or an img tag, is just that, a link. The link tells the user's browser that, if they want to, they can find an image at the specified location. Then, if the user does want to, they will go to the address, and ask the image's owner: "Can I please see this image?". The image's owner will respond "Yes, I grant you permission. Here it is" and give the image to the user. This can not be copyright infringement, as it is the owner himself that is making the copy and providing it to anyone who asks for it.

     

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  72.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 10:55am

    Re: inline linking as copyright infringement

    In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made.

    But here's the thing, with an inline link YOU are NOT displaying the image. The ORIGINAL holder of that image is. You are simply pointing the viewers computer to go to their site and view their image.

    You have not copied it, and you have not displayed it, since you have never touched the image -- only pointed people to it.

    So I would argue that 106(5) doesn't apply here.

    Assuming that the photograph is not in the public domain and assuming that the display of the photograph on the originating site is not a "fair use," then the act of publishing the inline link IS most certainly an infringement of the copyright in the photograph.

    I would suggest that the only way in which that makes any sense is if you do not understand what is happening at a technological level.

    It makes absolutely no sense that an image viewed in the same browser, hosted on the same server is "infringing" just because of how someone linked to it.

    It is irrelevant that techies do not like this result. If you don't like the law, change it. Don't deride those of us who're trying to make sense of it.

    Uh. It's not that "techies don't like the result" it's that the result doesn't make any sense.

     

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  73.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 11:00am

    Re: Re: Re: Permission


    All that said, Mike or Ima, got something to say to dnball's 17 USC section 106(5) display argument? I'd like to hear it ...


    Sure, as I explained above, the person doing the hotlinking is NOT displaying the image. They are simply telling your computer to go view the image on its original server.

    If that's copyright infringement, then the entire web is copyright infringement, because every time you visit any website, your browser goes out and fetches the content from a variety of servers.

     

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  74.  
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    vivaelamor (profile), Jan 6th, 2010 @ 11:01am

    Re: additionally...

    None of what you have said explains why it should be considered an infringement to inline link or whatever you want to call it.

    If you're so concerned about the average user being misled then build a browser that lets people know when something is linking off-site. Or get them to use Opera which has the option to block such images by default. I even have an addon running in Firefox right now that blocks any off-site linking by default.

    Conversely, you can also make your browser automagically convert normal hyperlinks to images into inline images. By your logic, any browser that offered that capacity as the default option would be liable, which would be absurd.

     

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  75.  
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    Steve O'Donnell (profile), Jan 6th, 2010 @ 11:01am

    Re: Re:

    So, just to be clear. . . your website(s) are what again?
    Also, all your websites' images and contents are CC licensed, right?

     

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  76.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 11:02am

    Re: Re: Re: Re: Permission

    I litigate intellectual property disputes. And in doing so the law that applies is the law that exists -- not what ought to exist. When you're in a conference room and you have the law so firmly on your side [such as in an inline linking situation where "fair use" does not apply -- and those situations are the bulk of them] then the dispute resolves in favor of the copyright owner. Period.

    Except when it does not, as was pointed out in the Perfect 10 case.

    Not so "period" after all.

    And, again, I wholeheartedly disagree with your interpretaion of the law. If you hotlink, you are not displaying the image. You are simply telling the user's computer where they can find the image -- and it's in the same spot as the "legal" and "authorized" version. To claim that one case is unauthorized and the other is authorized simply makes no sense. If that were the case, every website would be infringing, because every website involves telling your browser to go to a webserver or series of webservers and to redisplay the content locally.

     

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  77.  
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    Steve O'Donnell (profile), Jan 6th, 2010 @ 11:03am

    Re: Re: Re: Re: Permission

    Really? No one hosts their own images?

     

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  78.  
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    Trails, Jan 6th, 2010 @ 11:04am

    Re: A note about how the web works

    Sorry about the empty post.

     

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  79.  
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    vivaelamor (profile), Jan 6th, 2010 @ 11:05am

    Re: Re: Technical problem, technical solution.

    If that warrants damages then I'm liable for the development of non-skippable adverts.

     

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  80.  
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    dnball (profile), Jan 6th, 2010 @ 11:05am

    Re: Re: Re: inline linking as copyright infringement

    Derek,

    Read pages 15460 - 15462 of the court decision here: http://j.mp/6ri6qm [this case supersedes the case that Richard linked to].

    This particular court held that a website operator who provides an inline link does NOT "display" the linked-to photograph [and so is not a "direct infringer" of the copyright in the photograph] but that it may be liable to the copyright owner as a "contributory infringer."

    No other court in the country has come to that conclusion and, even within this court's jurisdiction, when the copyright owner locates a direct infringer and discovers where the image was downloaded from then the in-line linker will have to defend the contributory infringement claim.

    As someone who litigates these matters, I can attest to the fact that that discovery is done -- and is easy to do -- but is expensive for all concerned (including for the person who publishes the inline link because the subpoena for his or her records will be very broad).

    All of which means that in-line linker's outside the Ninth Circuit [essentially the West Coast] are targets for direct infringement suits and, if the linker's reside within the Ninth Circuit, then they're setting themselves up as targets for a contributory infringement suit. And, as another commenter noted, perhaps they will be sued for unfair competition or other torts as well.

    At the end of the day, it's a business decision whether the risk of liability for inline linking is worth that exercise. But faced with -- at least -- a contributory infringement claim, taking that risk does not seem wise.

     

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  81.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 11:07am

    Re:

    Response: You've accurately described a hypertext link but not an inline link. An inline link tells the visitor's browser to access the file residing on the linked-to site and then display it (in the case of a photograph) in the browser. That inline link results in the display of the photograph on the visitors browser. It is that display that infringes the photograph owner's copyright.

    That makes no sense, either technically or legally. If that is the case, the entire web is infringing on copyright, because *every* website tells the visitor's browser to access the files on linked to sites and then display it in the browser.

     

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  82.  
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    dnball (profile), Jan 6th, 2010 @ 11:08am

    Re: Re: Re: Re: Re: Re:

    See my response to Derek Bredensteiner below. And play nice, your negative energy's a downer.

     

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  83.  
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    dnball (profile), Jan 6th, 2010 @ 11:12am

    Re: Re: Re: Re: Re: Permission

    Please see my response at @11:05 am to Derek Bredensteiner below.

     

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  84.  
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    dnball (profile), Jan 6th, 2010 @ 11:15am

    Re: Re: inline linking as copyright infringement

    Please see my response at @11:05 am to Derek Bredensteiner above.

     

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  85.  
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    vivaelamor (profile), Jan 6th, 2010 @ 11:15am

    Re: Re: Re:

    Parent's point is that someone who has set up their server to automatically serve anyone who accesses it has no legal protection from people doing so. It's not even a case of leaving something out for someone to take without permission, you don't just 'take' bandwidth.. it's a two way system. If this wasn't the case then Slashdot could be sued for committing DDoS attacks.

    Your jibe about 'if that's ok, lemme copy your work' is silly because copyright doesn't come into it. It's the difference between someone giving out leaflets to everyone and someone else then copying one of those leaflets to redistribute themselves. You can't claim copyright infringement for someone taking a leaflet you gave them, but you can claim infringement if they then copy that leaflet.

     

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  86.  
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    Otto, Jan 6th, 2010 @ 11:18am

    Truth of the matter

    IANAL, but I know a lot of them. And I know how judges tend to think.

    FACT: Hotlinking an image can be copyright infringement. It may not always be so, but it is indeed possible. The reason does not appeal to tech-nerds like you and me, but it does make sense when you consider it from a legal standpoint. Here's why:

    The law is unconcerned with matters of a technical nature. It considers end-results. "Workarounds" as we think of them are generally considered to be skirting the "intent of the law", and "intent" is important when it comes to legal decisions.

    Consider a webpage as a whole. It is one thing to the viewer. Regardless of how that thing was created, the law really only considers end-results. That one thing is one thing and only that one thing. The fact that an image was hotlinked and so no actual "copying" occurred is irrelevant because copyright also covers the creation of derivative works.

    If I take an image and stick it into a webpage, then the webpage as a whole is a derivative work of that image. The individual pieces of that page indeed have their own copyrights, but by displaying a webpage, I've created an aggregation of content from multiple sources. That derivative work has to abide by all the copyrights of all those sources. Meaning that I need proper permissions to display ("perform") the whole aggregate work.

    The fact that I've hotlinked to the image instead of copying it doesn't matter. I've created a new work with that image included in it, and so I'm stuck with whatever rules apply to it.

    Note that this is different than posting a regular link to that image, because the regular link is not copyrighted. A URL is not copyrighted information, the content at that URL is.

    So yes, you must have permission to inline hotlink to an image. The fact that it's on somebody else's server is irrelevant, you performed an act of creation of a derivative work by making the webpage, and that most certainly is covered by copyright law. Note that images on Flickr and such might be Creative Commons licensed and such, which gives you implicit permissions to display and reuse them, as long as you abide by the terms of the license. If there's no implicit permission, and you don't have explicit permission from the owner, then guess what: You are infringing copyright and yes, you could get sued. And you'd lose.

    Feel free to disagree with me if you want, but if you do, then you're simply wrong, and I'm not inclined to argue with you further anyway. :)

     

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  87.  
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    vivaelamor (profile), Jan 6th, 2010 @ 11:20am

    Re: Re: Re: Re: Re: inline linking as copyright infringement

    If you're a lawyer then you're really doing your profession a disservice with that reply.

     

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  88.  
    identicon
    :), Jan 6th, 2010 @ 11:21am

    Is not infringement.

    In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made.


    Well the displaying is being done by the computer of the user that gets the image from the owners server. The access to the image is being granted by the creator in a public space, as the owner could easily take steps to prevent others from accessing the images taking it down or by using more advanced setups.

    The owner have total control over the image and can remove it or change it or block it, so he lost no control over it and therefore there is no infringement as I understand.

    It is not infringement, but lawyers and the public have little saying on the matter, the real thing is this should be decided by a higher court so the lower courts can take a hint from it and start to make some decisions either way. Until then this is a gray area that is not resolved.

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 11:23am

    Re: Re: Re: Re: inline linking as copyright infringement

    This particular court held that a website operator who provides an inline link does NOT "display" the linked-to photograph [and so is not a "direct infringer" of the copyright in the photograph] but that it may be liable to the copyright owner as a "contributory infringer."

    As you well know, contributory infringement, as per the Grokster decision, has to involve the 3rd party actively encouraging the infringement of copyright. But, again, with a hotlinked image *that is not happening*. All they are saying is "go look at this image hosted on its original server."

    If looking at the original image is not infringing, then hotlinking it cannot -- under any legitimate standard -- be infringing as well.

     

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    dnball (profile), Jan 6th, 2010 @ 11:25am

    Steve, Andrew F, and Otto -- it seems that we're outnumbered and trying to assist where assistance is neither desired nor appreciated. I've participated in online discussions that are civil and which benefit all -- but this ain't one of them.

     

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  91.  
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    Otto, Jan 6th, 2010 @ 11:34am

    Re:

    I know. People just don't get "derivative works" all that well.

    Title 17 § 106. Exclusive rights in copyrighted works

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

    (1) to reproduce the copyrighted work in copies or phonorecords;

    (2) to prepare derivative works based upon the copyrighted work;
    ...

    If only people would read the law beyond the word "copy", then they would understand this sort of thing better.

     

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  92.  
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    Steve O'Donnell (profile), Jan 6th, 2010 @ 11:34am

    Re:

    I agree.

    My original post was only intended to make people aware that their actions might turn into trouble and to strongly suggest that they look to Creative Commons licensed content instead of grabbing whatever they find, wherever they find it.

    I normally advise my clients to minimize their risk or litigation. I certainly didn't think that would be controversial.

    Anyway, thanks for the traffic!

     

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  93.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 11:40am

    Re:

    Steve, Andrew F, and Otto -- it seems that we're outnumbered and trying to assist where assistance is neither desired nor appreciated. I've participated in online discussions that are civil and which benefit all -- but this ain't one of them.

    Dnball, I'm struggling to see what about this conversation is not "civil." Many people are simply challenging your assertions, and you seem to simply be repeating what you said before, rather than actually responding to what people are saying.

     

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    dnball (profile), Jan 6th, 2010 @ 11:43am

    Re: Re: Re: Re: Re: inline linking as copyright infringement

    I disagree Mike. You're underplaying the standard for contributory infringement. See page 12 of the Grokster decision here: http://j.mp/7F4ID4 .

    "When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement. See In re Aimster Copyright Litigation, 334 F. 3d 643, 645–646 (CA7 2003). One infringes contributorily by intentionally inducing or encouraging direct infringement, see Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F. 2d 1159, 1162 (CA2 1971), ... ."

    There are many websites that provide the service of publishing photographs with the reasonable assumption [and sometimes with implicit or explicit encouragement] that visitors will copy the linked-to photographs. Context is key and every situation is different -- which, granted, may make the liability risk manageable. But maybe not. And so the black letter rule that you're espousing that ALL inline linking is lawful [because its neither direct nor contributory infringement] is just not accurate.

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 11:47am

    Re: Truth of the matter

    Consider a webpage as a whole. It is one thing to the viewer. Regardless of how that thing was created, the law really only considers end-results. That one thing is one thing and only that one thing. The fact that an image was hotlinked and so no actual "copying" occurred is irrelevant because copyright also covers the creation of derivative works.

    The derivative work argument does make more sense than the "display" case made by dnball, but I still don't think it stands up to any reasonable scrutiny.

    A webpage that includes an inline image is not, in fact, a derivative work. The copyright only applies on the derivative work that is derivative from the copyrighted work. Most of the webpage would NOT then be covered, because while it includes the display of that image -- from the original server -- it, itself, is not derivative.

    If I take an image and stick it into a webpage, then the webpage as a whole is a derivative work of that image.

    Again, that makes no sense. With very few exceptions, it is ridiculous under the law or common sense to say that the rest of the webpage derives from that image. There could be cases where an entire page is built around an image that you could fairly make that case, but in most cases it would not apply.

    That derivative work has to abide by all the copyrights of all those sources. Meaning that I need proper permissions to display ("perform") the whole aggregate work.

    Again, this is not at all the case. You are not displaying the image. The original -- legal -- server is. And the rest of the web page is not, in fact, derivative.

    So yes, you must have permission to inline hotlink to an image. The fact that it's on somebody else's server is irrelevant, you performed an act of creation of a derivative work by making the webpage, and that most certainly is covered by copyright law.

    You are confusing two separate issues in a very serious and very incorrect way. The "performance" is the original performance, and the rest of the website is not derivative.

    Feel free to disagree with me if you want, but if you do, then you're simply wrong, and I'm not inclined to argue with you further anyway. :)

    Ah, well, that's nice.

     

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  96.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 11:51am

    Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    I disagree Mike. You're underplaying the standard for contributory infringement. See page 12 of the Grokster decision here: http://j.mp/7F4ID4 .

    Ok. This is getting frustrating.

    If you post an image on your server, you are granting authorization to display that image from that server. If I then hotlink it, it is still being displayed from that server in an authorized manner.

    Thus, my hotlinking CANNOT be contributory infringement because it is NOT being used to infringe. It is being used to display an authorized image from an authorized server.

    How can it possibly be contributory infringement if nothing is infringed?

     

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    Chris Brand, Jan 6th, 2010 @ 11:51am

    Re: Permission

    "Any activity (such as linking to an image) which does not of itself involve copying is simply not covered by copyright (the clue is in the name - it's COPYright not LINKright.)

    The copying activity involved is EXACTLY the same as what happens when you view the content on its native site - and de-facto permission has already been given for that.

    To infringe copyright law you have to make a copy that was not authorised."

    It's a big mistake to assume that copyright law is (only) about copying. Copyright gives all sorts of rights to the rightsholder, and "reproduction" is just one of them. Granted, some of the others may always involve copying (it's difficult to see how you could publish something without copying it), but certainly not all ("perform in public" and "broadcast" spring to mind, to say nothing of "contributory infringement" or the stuff in the DMCA about distributing tools that defeat DRM).

    Bear in mind also that the first first copyright law didn't say anything about copying, just publishing and distributing. Copying was added later on the basis that anyone willing to spend the money necessary to run a printing press was certain to be publishing and/or distributing.

    You definitely don't have to make a copy in order to infringe copyright. The name is unfortunate. I suspect we'd have a lot more clarity in these discussions with something like the French "author's right" or "manuscript right" (I believe that the "copy" in "copyright" is actually the noun, which is close in meaning to "manuscript").

     

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  98.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 11:55am

    Re: Re:

    I normally advise my clients to minimize their risk or litigation. I certainly didn't think that would be controversial.

    No one is saying that you won't get sued. Obviously, there are numerous lawyers (and potentially some judges) who are extremely confused over how the basic technology works -- and because of that are misreading the law in dangerous and damaging ways.

    And we agree that mitigating the risk makes sense (and, in general, that hotlinking is rude and dumb).

    But arguing that hotlinking is a "worse" form of copyright infringement seems highly questionable to me.

     

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    Steve O'Donnell (profile), Jan 6th, 2010 @ 11:58am

    Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Wow. Just wow.
    Not that I like the opinion, but here's a recent one close to on point (do you know what that means?):
    http://www.scribd.com/doc/24472944/Columbia-v-Fung-Summary-Judgment-Order
    It is the Ninth, but you don't mind.

     

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  100.  
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    Steve O'Donnell (profile), Jan 6th, 2010 @ 12:02pm

    Re: Re: Re:

    Not quite sure I made that argument. Assuming both are infringements, and one is more rude than the other, doesn't that made one worse than the other?

     

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    dnball (profile), Jan 6th, 2010 @ 12:15pm

    Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Even if I reside in the Ninth Circuit, if I hotlink to an image [that’s being lawfully displayed on someone else’s server] and encourage my website visitors [implicitly or explicitly] to reproduce the image and they do so, then I’m a contributory infringer. This is so because a direct infringement occurred that I intentionally encouraged.

    To beat my other point to death, in non-Ninth Circuit states, the hotlink alone is likely a directly infringing “display” of the image [displayed on my website, though granted, being served from someone else's -- a distinction the Ninth Circuit thought was important (in a footnote) but which puts form far over substance and which, I don't think, was well reasoned considering that copyright law already has within it a mature body of "fair use" law that applies when someone wants to make use of another's work].

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 12:22pm

    Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Even if I reside in the Ninth Circuit, if I hotlink to an image [that’s being lawfully displayed on someone else’s server] and encourage my website visitors [implicitly or explicitly] to reproduce the image and they do so, then I’m a contributory infringer. This is so because a direct infringement occurred that I intentionally encouraged.

    Again, what is the direct infringement? We are talking about an authorized image on displayed from an authorized server.

    There is no direct infringement, and thus, no contributory infringement.

    To beat my other point to death, in non-Ninth Circuit states, the hotlink alone is likely a directly infringing “display” of the image [displayed on my website, though granted, being served from someone else's -- a distinction the Ninth Circuit thought was important (in a footnote) but which puts form far over substance and which, I don't think, was well reasoned considering that copyright law already has within it a mature body of "fair use" law that applies when someone wants to make use of another's work].

    Again, how is it infringing to display an authorized image from an authorized server?

    If that's infringement visiting ANY webpage is infringing.

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 12:24pm

    Re: Re: Re: Re: Re: Permission

    Really? No one hosts their own images?

    It's not that no one hosts their own images at all. The argument is that the infringement occurs because I'm viewing the image on my own computer (the display happens there).

    Thus, if I host my own image, and you open the webpage, you have now (based on your reasoning) made a direct infringement of my images by displaying them on your home computer.

    Do you not see why that's a problem?

     

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    vivaelamor (profile), Jan 6th, 2010 @ 12:28pm

    Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    "because a direct infringement occurred that I intentionally encouraged. "

    What direct infringement? Are you seriously suggesting that a person is liable for loading an image from a website they didn't visit? If not then the claim of contributory infringement is absurd; how can one party be held liable for contributory infringement if no one is liable for actual infringement.

    If you seriously believe that loading an image from a website you didn't visit is infringement then good luck with that. Even the Huffington Post has had embedded videos from other sites that later got pulled because they were not authorised. Your logic would suggest that everyone who visited the Huffington Post before they were pulled is liable for copyright infringement and that the Huffington Post is liable for contributory infringement.

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 12:29pm

    Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    (do you know what that means?)

    Wow. Considering it was your friend saying this conversation was "uncivil" and you agreed, that's beyond obnoxious. Are you so unable to argue points based on logic that you must resort to pure insults?

    However, since I *will* be civil, I will point out that we wrote about the Isohunt case, and it's incredibly different -- not at all "close to on point." That was a case where the court found that Fung specifically did, in fact, encourage infringing behavior.

    But what's happening with inline linking is not encouraging infringing behavior. It's encouraging authorized viewing of an authorized image.

     

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  106.  
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    dnball (profile), Jan 6th, 2010 @ 12:33pm

    Re: Re:

    Mike, perhaps I'm being too sensitive. But I don't think so. I've linked to two different court opinions now [which don't simply reiterate the same points] and have explained both the direct infringement and contributory infringement angles and explained their practical applications from a litigator's perspective. Your readers simply chatter about what they want the law to be, not what it is -- and have attacked the way I present the info and claim that I'm not listening.

    From a 30,000 foot perspective, it always happens that folks who're very knowledgeable about a subject [as your readers are about tech] get frustrated when their world is translated into legal lingo and analysis. The fit ain't perfect and the translation is awkward. Good lawyers spend a lot of time reconciling the two worlds so true communication can occur. Which is difficult in these online chats.

     

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  107.  
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    Otto, Jan 6th, 2010 @ 12:36pm

    Re: Re: Truth of the matter

    A webpage that includes an inline image is not, in fact, a derivative work.
    I hate to break the bad news to you, but your opinion on this matter is not legal fact. You may want to do a search for precedent before making up your mind, as there's plenty of it and it all disagrees with you. I'd start with newspapers using images in them, that's probably the oldest ones.
    With very few exceptions, it is ridiculous under the law or common sense to say that the rest of the webpage derives from that image. There could be cases where an entire page is built around an image that you could fairly make that case, but in most cases it would not apply.
    I'm sorry, but you're wrong. Remember that there is a separation between the work as a whole vs. the individual constituent parts of that work.

    Consider the case of the newspaper. It consists of a number of stories, usually by different authors. Each story is copyrighted by that author (unless they've signed releases to that copyright, which many papers do not require). But the newspaper holds the copyright over the work as a whole. That copyright over the whole work is a real copyright, but it depends upon the willingness of the authors to have their content published in the paper. The copyrighted work of the paper is derived from their collective copyrights.

    This is not new case law, there's plenty of precedent, and you're simply wrong. Sorry.
    You are confusing two separate issues in a very serious and very incorrect way. The "performance" is the original performance, and the rest of the website is not derivative.
    No, I'm really not confusing anything here, you are confusing the issue by failing to consider the copyrights of the individual pieces vs. the copyright of the whole work. An aggregated work from multiple sources is a new work that is derived from those sources. Being derived makes it derivative. That's what the word means.

    We can wish that things were different, but they're not. The law is fairly clear in this respect.

     

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    Josh (profile), Jan 6th, 2010 @ 12:43pm

    I'm a criminal!

    Wait, so when I direct my browser to a web page with copyrighted content, that content gets copied into my cache, right? So I'm clearly committing a heinous crime. I guess I should DBAN after every session on the internet. I wonder if I'll be able to do that on a Google OS...

     

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  109.  
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    Paul @640k, Jan 6th, 2010 @ 12:45pm

    permission is granted by the webserver as an agent of the rights holder

    It's only possible to infringe upon a copyright if you lack permission from the rights holder. The central argument that techies are making about hotlinking is that they do have permission from the rights holder. The hotlink tells the browser to ask the rights holder's webserver "Hey, Alice sent me to get this picture from you, can I have it?" By responding to this request with the image instead of any of the numerous denials permitted by http (e.g. 403 forbidden), the rights hold is giving implicit permission for the browser to display the image.

    It would set a horrible precedent for net surfers, browsers, and developers to have to assume that someone's webserver is acting in bad faith. Promissory estoppel, anyone?

     

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    vivaelamor (profile), Jan 6th, 2010 @ 12:49pm

    Re: Re: Re: Re: Re: Re: Permission

    I can only think that Mr O'Donnell would view that as some sort of 'given' permission. Of course that would be silly because there is no real law on how to use the web, if people could throw lawsuits around for not accessing it in a way the host intended then people using screen readers and the like would be really hurt in collateral damage.

    It would be silly to ignore the possibility that the law might some day agree with him, but all evidence of the current law quite clearly disagrees with him. Any change would just result in a lot of collateral damage and no actual way to enforce the law how it might be intended. Much like copyright as it is now really.

    The bizarre thing about his position is whereas the alternatives to copyright protection involve a lot of changes to the system, solving his current 'problem' without resorting to litigation has already been done by the miracle of programming. All someone has to do to stop people linking to their images is to tell their server not to serve images to people who haven't visited the site for that session. While it's not a standard feature it certainly isn't a problematic one, I would suggest that the reason people don't do it already is because most would consider it to be as much of a waste of time as his supposed lawful protection.

     

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    Josh (profile), Jan 6th, 2010 @ 12:49pm

    Re: I'm a criminal!

    Oh yes, I also support raporism if you follow this logic.

     

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    dnball (profile), Jan 6th, 2010 @ 12:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    You wrote: Again, what is the direct infringement? We are talking about an authorized image on displayed from an authorized server.

    Response: Direct infringements are done by the visitors to the website where the inline link is published by their reproductions of the image. If no reproductions are done then, granted, no direct infringements occur and so the inline linker has no contributory liability. But, as a practical matter, the inline linker has NO control over whether his or her visitors reproduce the linked-to image. So, as I've said before, the linker is setting himself up for a contributory infringement claim [even in the Ninth Circuit].

    You wrote: Again, how is it infringing to display an authorized image from an authorized server?

    If by "authorized" you mean that the owner of the copyright in the image has expressly granted permission for the inline link then all is well - the linker has a license to link and escapes liability [assuming the linker satisfies, if required, the license obligation to place some sort of digital rights management lock on the image].

    But I think what you mean by "authorized" is that the owner of the copyright in the image has authorized the display of the image on his or her own server.

    Where we disagree -- and to use your language -- is that you think that by publishing its image on its server the copyright owner has "authorized" all inline linkers to display the image from their websites. You -- consistent with the Ninth Circuit -- do not consider the inline link to be a "display." I disagree for the reasons already given.

     

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    Nastybutler77 (profile), Jan 6th, 2010 @ 12:52pm

    Re:

    Other than one or two comments here, I'd say this has been a very civil discussion. If your delicate sensibilities have been offended, then you've got some pretty thin skin. I for one DO appreciate the viewpoint that you and the few others have put forth; however, I do think this matter is far from resolved.

    Just a question for you though: If I attach a webcam to the outside window of an art gallery, focus it on one particular painting and broadcast that on the internet am I infringing? I know I'm not displaying that painting (the gallery is), and the art gallery is free to move the painting. Because that's basically what a hotlink does, right? Am I missing something?

     

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    Andrew F (profile), Jan 6th, 2010 @ 12:53pm

    Re: Re: Re: Truth of the matter

    If you're citing precedent, I'd like to see cases please =). You can easily link to them off Google Scholar if you have the reporter number.

    Also, could you argue that the image link (the "" in the HTML) is itself a derivative work? Seems like dangerous territory, but I wouldn't be surprised if someone's made that argument in the past.

     

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  115.  
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    Anonymous Coward, Jan 6th, 2010 @ 1:01pm

    Re: Re: Re: Re: Re: Re: Re:

    "And play nice"

    Waaambulance, coming your way.

     

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    vivaelamor (profile), Jan 6th, 2010 @ 1:05pm

    Re: permission is granted by the webserver as an agent of the rights holder

    This seems to be the crux of the argument. What is quite plain to techies seems very hard to understand for some people. It's like setting up a router and expecting it to only let you access it wirelessly, if you've left it on its default settings then that is unlikely to be the case.

    When you've gone out of your way to tell your computer to serve web pages, you can go the step further and tell it who to serve them to. If you're relying on somebody else's services then it would seem a good idea to tell them how you want things to be done too.

    In the Real World(tm), if you want to be picky by only allowing those with a ticket into your establishment and you don't want to stand at the door then you hire a bouncer. On the internet the process may seem more complicated but really the bouncer is just instead a programmer. Even better is only having to hire them the one time if they do their job well.

     

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  117.  
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    Otto, Jan 6th, 2010 @ 1:05pm

    Re: Re: Re: Re: Truth of the matter

    A URL can't be copyrighted anymore than an postal address can be copyrighted. It's an address using a common convention, not an original creative work.

     

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  118.  
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    dnball (profile), Jan 6th, 2010 @ 1:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    You wrote: If you seriously believe that loading an image from a website you didn't visit is infringement then good luck with that.

    Response: The transitory reproductions of images [or any content] by my browser when I visit a website are not unlawful reproductions.

    Ok. Now to get back to my point: absent a fair use exception [which often apply to online news outlets, academics, libraries, etc.] if a person DOWNLOADS the image that I've hotlinked to and I've encouraged [for a more accurate description see page 16 of the following link - http://j.mp/8xM2hv ] the reproduction then that is contributory infringement.

     

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  119.  
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    Otto, Jan 6th, 2010 @ 1:08pm

    Re: I'm a criminal!

    Putting content online grants an implicit license for viewers of that content to copy it into their browser for the purpose of viewing it. See Parker v. Yahoo, Inc., 2008 WL 4410095 (E.D. Pa. Sept. 25, 2008).

    However, that does NOT extend to creating derivative works based on that copied content.

     

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    The Anti-Mike (profile), Jan 6th, 2010 @ 1:10pm

    Re: Re: Re: Re: Re: Re: Permission

    Again, I think you are playing a very technical card that isn't exactly correct.

    If you want to guide people to an image, you would just link to it.

    If you want to include and image as an integral part of your website, it is part of your page. I look at the source code of the site, and it's right there, you putting the image into the page.

    A browser renders what is in the HTML. It doesn't make it up, it gets it's instructions from somewhere, the person who published the page, which includes the integral image, not matter where it comes from.

    The Perfect 10 case revolves around "frame" of an image, with a very narrow scope in regards to Google's image search. That is significantly different from an image inline in the middle of a blog posting, example.

    Thus, if I host my own image, and you open the webpage, you have now (based on your reasoning) made a direct infringement of my images by displaying them on your home computer.

    This is the funniest part, because you ALMOST get it, and then fail because you are trying too hard to make reality match your views.

    If you host your own image, and you write a webpage that includes it, you are specifically granting viewership rights to it as part of that webpage. You are NOT granting someone the right to take that image and use it somewhere else. You are granting the rights of viewership. Rendering of the webpage is at your instruction, not at the end user's instruction. You set up the image links, you are responsible for them. The end user does not control what appears on your page, you do.

    It's incredibly funny to watch your tie yourself in knots on this one.

     

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  121.  
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    Otto, Jan 6th, 2010 @ 1:10pm

    Re: permission is granted by the webserver as an agent of the rights holder

    These "techies" are missing the fact that while you do have a implied right to view and display the content from that server, you do NOT have the right to create derivative works from it.

    Inline linking somebody else's images is legally no different than copying them to your own server and linking to them there. Both of these are copyright violations, as you're creating a derivative work.

    Creating derivative works is also protected by copyright, and "copying" the work is *not required to do this.

     

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    Otto, Jan 6th, 2010 @ 1:15pm

    Re: Re: Re: Re: Truth of the matter

    Also, you're more than capable of searching Google. Find your own precedents, I am not your search engine.

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 1:16pm

    Re: Re: Re: Truth of the matter

    I hate to break the bad news to you, but your opinion on this matter is not legal fact. You may want to do a search for precedent before making up your mind, as there's plenty of it and it all disagrees with you. I'd start with newspapers using images in them, that's probably the oldest ones.

    Again, I am afraid that you are equating situations that are entirely different, and it is your opinion that is not legal fact, nor does it make any sense.

    Consider the case of the newspaper. It consists of a number of stories, usually by different authors. Each story is copyrighted by that author (unless they've signed releases to that copyright, which many papers do not require). But the newspaper holds the copyright over the work as a whole. That copyright over the whole work is a real copyright, but it depends upon the willingness of the authors to have their content published in the paper. The copyrighted work of the paper is derived from their collective copyrights.

    That's not quite true (the newspaper does not, in fact, hold the copyright over the whole work, but of certain aspects of the whole work), but let's assume that what you say is true. It still does not support your position. We are not talking about a collection of copyrighted works here, we are talking about a blog post with a single image. You are suggesting that the entire page then becomes a derivative work of the image, and that is *not* so. Not even close.

    An aggregated work from multiple sources is a new work that is derived from those sources

    This is incorrect -- at least under US law, and also is not the scenario were are discussing above.

    You are suggesting -- wholly incorrectly -- that any use of any content makes the resulting work a derivative work. That is not at all true.

    We can wish that things were different, but they're not. The law is fairly clear in this respect.

    Except that it is not clear and you appear to be wrong.

     

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    vivaelamor (profile), Jan 6th, 2010 @ 1:19pm

    Re: Re:

    It would seem the real problem is your inability to explain your interpretation of "derivative works" all that well. Nothing you have referenced suggests that a block of code telling a computer where to find authorised copyright material constitutes a derivative work. Everything you have said conflicts with the fact that a normal link isn't a derivative work. Your argument seems to hinge on the fact that the image appears on the screen outside of the originating website.

    Let's try the telescope analogy again. Tell me how a site pointing to someone's authorised work is a derivative work if pointing a telescope at an authorised work in the Real World(tm) is not.

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 1:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Response: Direct infringements are done by the visitors to the website where the inline link is published by their reproductions of the image. If no reproductions are done then, granted, no direct infringements occur and so the inline linker has no contributory liability. But, as a practical matter, the inline linker has NO control over whether his or her visitors reproduce the linked-to image. So, as I've said before, the linker is setting himself up for a contributory infringement claim [even in the Ninth Circuit].

    That makes no sense at all. At all. Under that argument, the entire web is *automatically* infringing, because every time you visit a website, a reproduction occurs on your local computer.

    Where we disagree -- and to use your language -- is that you think that by publishing its image on its server the copyright owner has "authorized" all inline linkers to display the image from their websites.

    To argue that publishing an image on a server is not authorization to reach out and view that image on that server is the most ridiculous argument you have made today. There is no way to view that statement with any sense of reason at all.

    If you want, the technology allows you to prevent things like hotlinking, but when you put an image on a server, you are giving *explicit* permission to display that image from that server. It is authorized. Your argument that somehow it is not authorized is beyond reason, frankly.

     

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    The Infamous Joe (profile), Jan 6th, 2010 @ 1:22pm

    Re: Re: Re: Truth of the matter

    Doesn't a "work" have to be fixed? Are websites considered "fixed"? This is an honest question.

     

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    Dark Helmet (profile), Jan 6th, 2010 @ 1:23pm

    Re: Re: Re: Re:

    "Of course it does. They call it copyright for a reason."

    Please see the Patriot Act and don't make that mistake again....

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 1:24pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    The transitory reproductions of images [or any content] by my browser when I visit a website are not unlawful reproductions.

    Ok. What?!? That goes 100% against the argument you were making above when you said that inline linking was contributory infringement -- because the ONLY reproduction being made is the the transitory reproduction of the image by your browser.

    I can't see how you can make these two contradictory statements and continue to insist that you are correct here.

    if a person DOWNLOADS the image that I've hotlinked to and I've encouraged [for a more accurate description see page 16 of the following link - http://j.mp/8xM2hv ] the reproduction then that is contributory infringement.

    You do realize that the transitory reproduction of the image in your browser *is a download* right?

    You argue entirely contradictory things in the same comment.

     

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  129.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 1:27pm

    Re: Re: permission is granted by the webserver as an agent of the rights holder

    These "techies" are missing the fact that while you do have a implied right to view and display the content from that server, you do NOT have the right to create derivative works from it.

    You keep claiming derivative work when it is obvious you do not have the slightest clue what that means.

     

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    Otto, Jan 6th, 2010 @ 1:30pm

    Re: Re:

    Just a question for you though: If I attach a webcam to the outside window of an art gallery, focus it on one particular painting and broadcast that on the internet am I infringing?
    Yes. Yes, you are. Your video feed would be a derivative work of the painting that you have created. Paintings of photos, photos of paintings, video broadcasts, whatever. They're derivative works, and only the copyright holder has the right to make derivative works.

     

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    Simon, Jan 6th, 2010 @ 1:31pm

    Re: Re: permission is granted by the webserver as an agent of the rights holder

    If I send you to http://www.techdirt.com/images/techdirt_logohorizontal.gif am I also creating a derivative work? After all, this is Mike's image used outside of the context of his WebPage in the way he authorized it to be used.

     

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  132.  
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    Otto, Jan 6th, 2010 @ 1:32pm

    Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Actually, Mike, I understand exactly what a derivative work is. Sadly, you do not.

    Everything I have stated is fact, not opinions. It is not really up for debate. If you're debating it, then you are doing it from a position of ignorance. No insult intended, of course, I mean simply that you are ignorant of the topic which you are discussing.

    So, unless you're willing to be educated further on the topic, I have no way to convince you. I suggest you consult a quality lawyer on the topic, one who is versed in copyright law.

     

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    Otto, Jan 6th, 2010 @ 1:34pm

    Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    No, because a URL is not a copyrightable work, it's an address to some copyrighted work.

    See, you're not posting the image inline with some other work. In order for a work to be derivative, you actually have to derive something from it. You can't derive something from a URL because a URL is not a copyrightable work.

     

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    Otto, Jan 6th, 2010 @ 1:46pm

    Re: Re: Re: Re: Truth of the matter

    That's not quite true (the newspaper does not, in fact, hold the copyright over the whole work, but of certain aspects of the whole work)
    You are severely mistaken here, and this is the whole backbone of your error. You seem to be assuming that is it not possible to copyright a combined work which consists of other combined works. This is absolutely not the case. Newspapers DO in fact hold a copyright over the entire work as a whole (as well as specific portions of it also), and can control both copies and creation of derivative works of the whole as well. Example: If I were to take wholly public domain material and produce some type of aggregated work out of that material, I would have copyright over the aggregated work. You could not make copies of this work, even though pieces of it are public domain. You would be in your rights to use the public domain material yourself, but not to copy my specific work even though it consists entirely of public domain material.
    We are not talking about a collection of copyrighted works here, we are talking about a blog post with a single image. You are suggesting that the entire page then becomes a derivative work of the image, and that is *not* so. Not even close.
    The resulting page becomes derivative of ALL the works on the page. Including the blog post, the images used, everything. Each component has its own copyright to be sure, but the work as a whole is also copyrighted. You cannot reproduce the whole work without violating copyright law, can you? QED.
    This is incorrect -- at least under US law, and also is not the scenario were are discussing above.
    You are mistaken. Please cite the specific law stating that an aggregate work cannot be copyrighted. You may be mistaking this with the "collections of facts" type laws. A collection of facts indeed cannot be copyrighted, but creative works can be, even if they are aggregates of other materials.
    You are suggesting -- wholly incorrectly -- that any use of any content makes the resulting work a derivative work. That is not at all true.
    Use of a copyrighted material (of a creative work) within another creative work makes the result a derivative work. Period. In all cases.
    Except that it is not clear and you appear to be wrong.
    Sorry, but I'm not. This is the way it is. You can dispute it all you like, that doesn't make you correct. I suggest you should do some research before arguing about things you clearly know nothing whatsoever about.

     

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  135.  
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    Big Al, Jan 6th, 2010 @ 1:47pm

    Re: There are situations, yes

    If you are putting unwatermarked, unprotected hi-res pictures on the web then you are asking for trouble anyway, since copyright infringement abounds.
    However, we're not talking about people copying images and using them as backgrounds etc. We're talking about a link to a picture in an unrelated web page. Since the picture still resides on your server and is served from there, presumably with your permission since you made it publicly available, then the copying does not occur therefore copyright is not applicable in this case.
    Do keep up.

     

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    dnball (profile), Jan 6th, 2010 @ 1:47pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    You wrote: To argue that publishing an image on a server is not authorization to reach out and view that image on that server is the most ridiculous argument you have made today.

    Response: Why does it matter to you so much where the 0's and 1's reside? The end result is that a visitor to Webpage A is viewing images served from Webpage B -- and yet the Webpage B owner has no say in that matter? Or, as you clearly believe, that the Webpage B owner has explicitly given permission for its site content to be displayed on Webpage A [and C and D and F, ad infinitum]? But what then does it mean to have the exclusive right to display copyrightable content if everyone and their brother can display it FROM THEIR WEBPAGES? It means nothing.

    In your view of things the only way for the Webpage B owner to have any control over where its content is displayed is to digitally lock it down or not publish the content. But the law does not -- nor should it -- require locks as a precondition to enforce a property owner's rights in its physical property or digital content. And as for not publishing the content as a control mechanism the law is directly contrary -- copyright law promotes the distribution of works rather than incentivizing their secrecy.

    I need to sign off now. Greatly appreciate the discussion and the venue to hold it. Cheers.

     

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    vivaelamor (profile), Jan 6th, 2010 @ 1:54pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    "Response: The transitory reproductions of images [or any content] by my browser when I visit a website are not unlawful reproductions."

    Let me rephrase it then, if you seriously believe downloading an image linked from a third party site is infringement then good luck with that. Downloading copyrighted works is not infringement just because you didn't use the originating site. If it were then the RIAA wouldn't have so much trouble finding people to sue. In the very case file you reference the plaintiffs themselves specifically note that the files were not coming from their own servers.

    "Ok. Now to get back to my point: absent a fair use exception [which often apply to online news outlets, academics, libraries, etc.] if a person DOWNLOADS the image that I've hotlinked to and I've encouraged [for a more accurate description see page 16 of the following link - http://j.mp/8xM2hv ] the reproduction then that is contributory infringement."

    I reiterate: downloading authorised works is not infringement hence there can be no contributory infringement for helping someone download a copyrighted work from an authorised site. Your reasoning would ultimately make hypertext links to a copyrighted work infringement, and thus make the majority of the internet infringing.

     

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  138.  
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    Otto, Jan 6th, 2010 @ 1:56pm

    Re: Re: Re:

    A block of code is not the "work". The resulting webpage that displays in the browser is the "work".

    Or would you suggest that a painting is nothing more than paint on canvas? How can you copyright colored pigments and canvas, after all? /sarcasm

    Just because the difference between "a href" and "img src" is minimal doesn't mean that there is not a substantive difference there. When I put an image into a work, then that is not a mere matter of a few characters.

    BTW, a telescope pointing at somebody else's work IS a derivative work if you then broadcast the resulting image to somebody else. It's like taking a photograph of a painting. The photograph is a derivative work.

     

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  139.  
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    Simon, Jan 6th, 2010 @ 1:56pm

    Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    So an iFrame in a blank page on my server pointing to http://www.techdirt.com/images/techdirt_logohorizontal.gif would be OK too?

    I know I'm being pedantic, but you are so certain that inline links are a derivative work, I'm just trying to figure out where the line is.

    Thank you for sticking around and responding - it is appreciated.

     

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  140.  
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    erica (profile), Jan 6th, 2010 @ 1:58pm

    Hotlinking

    Sure I cannot see where it is copyright infringement to hotlink, but it would be bandwidth stealing if you do not have permission.

     

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  141.  
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    Otto, Jan 6th, 2010 @ 2:07pm

    Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    See, this is where tech-nerds get it wrong. You're trying to draw a technical line somewhere, but the problem is that the question is not a technical one. It's a legal one, and legal interpretations aren't based around technical jargon.

    An iFrame could be infringing or not, it depends on how it is used specifically. If it's used to display copyrighted content on your webpage without permission, then it's infringing.

    The law doesn't care HOW you do something. The law cares about WHAT you do. That is what makes it a violation or not.

    If you're putting somebody else's copyrighted content onto your webpage (which is your creative copyrighted work) without their permission, then you are infringing their copyright. Period. It doesn't matter how you do it in the slightest.

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 2:12pm

    Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Everything I have stated is fact, not opinions.

    Heh. That is simply untrue. Most of what you said is opinion, and disputed quite clearly by many people, including (yes) lawyers. Do you not realize that there are lawyers arguing against you on this board?

    No insult intended, of course, I mean simply that you are ignorant of the topic which you are discussing.

    Again, this is untrue, but if you want to believe it... well, that's not really my problem.


    So, unless you're willing to be educated further on the topic, I have no way to convince you. I suggest you consult a quality lawyer on the topic, one who is versed in copyright law.


    I am educated on this topic, and I have discussed it with multiple well-known, well-respected copyright lawyers.

    You?

     

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  143.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 2:18pm

    Re: Re: Re: Re: Re: Truth of the matter

    Example: If I were to take wholly public domain material and produce some type of aggregated work out of that material, I would have copyright over the aggregated work.

    This is untrue in the US. It may be true in Europe, but untrue in the US.

    I don't know how to say this other than the fact that you are wrong.

    You would be in your rights to use the public domain material yourself, but not to copy my specific work even though it consists entirely of public domain material.

    This is wrong. http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

    The resulting page becomes derivative of ALL the works on the page. Including the blog post, the images used, everything. Each component has its own copyright to be sure, but the work as a whole is also copyrighted. You cannot reproduce the whole work without violating copyright law, can you? QED.

    I have a theory that anyone who uses QED is clearly wrong and only using it because they cannot back up their position.

    You are mistaken. Please cite the specific law stating that an aggregate work cannot be copyrighted. You may be mistaking this with the "collections of facts" type laws. A collection of facts indeed cannot be copyrighted, but creative works can be, even if they are aggregates of other materials.

    Again, http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

    I suggest you should do some research before arguing about things you clearly know nothing whatsoever about.

    I have done the research and I know quite a bit about this. I believe you are severely misinformed.

     

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    dnball (profile), Jan 6th, 2010 @ 2:23pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Yes, Virginia, there is a technical and legal difference between transitory reproductions made as part of the operation of browsers [the reproductions being automatically overridden] and reproductions made so the copyist can pin a picture of Farrah Fawcett on his bedroom wall. The law clearly acknowledges this difference [most specifically in the DMCA and in case law that I no longer have any inclination to find for you].

    Your tenacious adherence to your position leaves no room for further discussion. You think I'm wrong [and unsupported by reason or law] and I think you're wrong [and unsupported by reason or law]. Nonetheless, good chat. All my best.

     

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  145.  
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    KevinJ (profile), Jan 6th, 2010 @ 2:23pm

    Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    "If you're putting somebody else's copyrighted content onto your webpage (which is your creative copyrighted work) without their permission, then you are infringing their copyright."

    You know, i just did a Google search for "block hotlinking" and got 179 thousand results. And each of the relevant results I checked on the first page of results says basically the same thing. That you add some code to the .htaccess file for the site that denies permission when a site other than your own asks for an image. Without adding that code (or similar) the server automatically grants the request. Since it appears that the HTTP protocols have it so you have to explicitly deny permission, wouldn't that mean that permission is implicitly given unless otherwise stated?

     

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    Mike Masnick (profile), Jan 6th, 2010 @ 2:27pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Response: Why does it matter to you so much where the 0's and 1's reside?

    It makes every difference in the world. If they reside on the copyright holder's server, then it's a case where the copyright holder has given explicit permission for a browser to make a transitory copy of the image -- thus, there is no copyright infringement (direct or contributory) happening.

    The end result is that a visitor to Webpage A is viewing images served from Webpage B -- and yet the Webpage B owner has no say in that matter?

    Again, this is simply untrue and again displays your lack of technical knowledge. The webpage B owner has TREMENDOUS say in it. They control the image totally. They can change the image. They can block the call from Webpage A.

    But what then does it mean to have the exclusive right to display copyrightable content if everyone and their brother can display it FROM THEIR WEBPAGES? It means nothing.

    Again, it means everything. The Webpage B owner still has full control over the image and can *easily* block its use on other sites. That you do not understand this, again, suggests where you confusion comes from in this case.

    In your view of things the only way for the Webpage B owner to have any control over where its content is displayed is to digitally lock it down or not publish the content. But the law does not -- nor should it -- require locks as a precondition to enforce a property owner's rights in its physical property or digital content.

    Uh, the problem is that when they put it on a site with *explicit permission* for it to be viewed via an inline link. That's how the server works. The browser asks for permission -- and the server *grants* it. It GIVES AUTHORIZATION.

     

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  147.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 2:33pm

    Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    See, this is where tech-nerds get it wrong. You're trying to draw a technical line somewhere, but the problem is that the question is not a technical one. It's a legal one, and legal interpretations aren't based around technical jargon.

    And that leads to totally nonsensical results where something like hotlinking is seen as infringing by people who don't actually understand what's happening.

    If the law is not based on what's happening, then that's a MASSIVE problem with the law. That you seem to think this is fine is really quite troubling.

    The law doesn't care HOW you do something. The law cares about WHAT you do. That is what makes it a violation or not.

    But you are confused. The technology is the WHAT.

    If you're putting somebody else's copyrighted content onto your webpage (which is your creative copyrighted work) without their permission, then you are infringing their copyright. Period. It doesn't matter how you do it in the slightest.

    Indeed, but this is where your confusion shows. Hotlinking is NOT PUTTING the image on your page. The image is not on your page.

     

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    dnball (profile), Jan 6th, 2010 @ 2:34pm

    Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    If you don't lock your front door can you still assert your property right in your couch if someone walks in and takes it? Yes. I like your critical thinking but the law does not require locking property [either digital or physical property] as a precondition to enforcing your rights in the property.

     

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  149.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 2:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Yes, Virginia, there is a technical and legal difference between transitory reproductions made as part of the operation of browsers [the reproductions being automatically overridden] and reproductions made so the copyist can pin a picture of Farrah Fawcett on his bedroom wall.

    Uh, ok, but the problem is no one is talking about pinning a picture of Farrah Fawcett on his bedroom wall. We're only talking about transitory reproductions made as part of the operation of the browsers.

    That's what hotlinking is.

    Your tenacious adherence to your position leaves no room for further discussion. You think I'm wrong [and unsupported by reason or law] and I think you're wrong [and unsupported by reason or law]. Nonetheless, good chat. All my best.

    There is plenty of room for further discussion if you could actually support the claim that hotlinking is somehow not a transitory display in a browser which you claim is not infringing. If you can support that statement in any manner, I would be surprised.

     

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  150.  
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    Otto, Jan 6th, 2010 @ 2:44pm

    Re: Re: Re: Re: Re: Re: Truth of the matter

    Sorry, but no good. Bridgeman v. Corel does not apply, as it said nothing about aggregations or collections of works. It was about exact reproductions of existing works.

     

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  151.  
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    Otto, Jan 6th, 2010 @ 2:46pm

    Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    You didn't lock your door, so it's okay for me to walk into your house and take your fridge?

     

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    vivaelamor (profile), Jan 6th, 2010 @ 2:52pm

    Re: Re: permission is granted by the webserver as an agent of the rights holder

    "These "techies" are missing the fact that while you do have a implied right to view and display the content from that server, you do NOT have the right to create derivative works from it."

    Sure you do. Even if a court decided that inline linking were a derivative work you'd still have to overcome fair use. Let's do one hurdle at a time and suggest you come up with an example of inline linking being considered a derivative work first. Meanwhile, here's another analogy drawn from the Real World(tm): someone gives me a leaflet, I display the leaflet on a notice board; in which circumstances could I be held liable for having created a derivative work?

    "Inline linking somebody else's images is legally no different than copying them to your own server and linking to them there. Both of these are copyright violations, as you're creating a derivative work."

    Apparently the US' Ninth Circuit disagrees with you: "While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion."

    "Creating derivative works is also protected by copyright, and "copying" the work is *not required to do this."

    Did anyone suggest that it is?

     

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  153.  
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    Otto, Jan 6th, 2010 @ 2:52pm

    Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    And that leads to totally nonsensical results where something like hotlinking is seen as infringing by people who don't actually understand what's happening.
    I do actually understand what is happening. I can quote the fucking HTTP protocol to you in detail and explain every god damn byte going over the wire. It is still infringing. None of the technical shit is at all relevant in the slightest.
    If the law is not based on what's happening, then that's a MASSIVE problem with the law. That you seem to think this is fine is really quite troubling.
    The law IS based on what is happening. However, What is happening is that you are taking somebody's image and putting it into your own content without their permission. If the law actually gave a damn about the technical methodology that was employed and thus allowed a way to circumvent your theft of somebody else's work, then the law really would be severely broken, wouldn't it? Anybody can steal anything they want, as long as they do it in a really clever way? On what planet is that right?
    But you are confused. The technology is the WHAT.
    Nooo.. The technology is the HOW. Does your average user know, or care, where the image came from? He sees the image on your page, should that be different in the eyes of the law because the image came from one server over another server? How can the same end result (user sees image on your page) be legal in one method and an infringement with another?
    Indeed, but this is where your confusion shows. Hotlinking is NOT PUTTING the image on your page. The image is not on your page.
    Then you are using your terms in incorrect ways. Hotlinking = putting the image on your webpage by linking to it from the other person's server. You're linking it "hot" by linking to somebody else's server. They pay for the bandwidth to serve the image to your viewers. And yes, it CAN BE copyright infringement to do that. Not to mention a real dick move.

     

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  154.  
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    Otto, Jan 6th, 2010 @ 2:57pm

    Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    You're missing that "fair use" is a defense against copyright infringement.

    Meaning that in order to claim fair use, you're basically stipulating that yes, you have committed infringement. It's just a special type of allowed infringement.

    Also, the US Ninth Circuit court case agrees with me. Google was ruled to have not created a derivative work, but to be displaying the original work as a whole in a fair use manner.

     

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  155.  
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    vivaelamor (profile), Jan 6th, 2010 @ 2:58pm

    Re: Re: Re: Re:

    A block of code is not the "work". The resulting webpage that displays in the browser is the "work".

    From the Perfect 10 vs Google case: "Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects…in which a work is fixed…and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy."

    "BTW, a telescope pointing at somebody else's work IS a derivative work if you then broadcast the resulting image to somebody else. It's like taking a photograph of a painting. The photograph is a derivative work."

    But you're not taking a photo, you're promoting access to a freely accessible existing authorised photo.

     

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  156.  
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    Richard (profile), Jan 6th, 2010 @ 3:04pm

    Re: Re: Re: Re: Re: Re: Re:

    "In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made."

    and when the courts came to interpret this law they decided that "the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that “displays” the content."

    It doesn't matter that you don't like this decision - it's the law as interpreted by more senior lawyers than you - and you are plain wrong.

    (I feel another "Black Knight" moment coming on here....)

     

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  157.  
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    vivaelamor (profile), Jan 6th, 2010 @ 3:06pm

    Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    "Meaning that in order to claim fair use, you're basically stipulating that yes, you have committed infringement. It's just a special type of allowed infringement."

    Now you're just being silly, I was being hypothetical.. ever heard of the phrase 'for the sake of argument'?

    "Also, the US Ninth Circuit court case agrees with me. Google was ruled to have not created a derivative work, but to be displaying the original work as a whole in a fair use manner."

    That's a creative interpretation of the ruling, a real derivative work. The case was about both thumbnails and in-line links, two distinct issues which you seem to confuse.

     

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  158.  
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    dnball (profile), Jan 6th, 2010 @ 3:16pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    So after a hundred or so posts in this thread the question boils down to whether the publication of material on a web page is the same as [or simply is] the grant of blanket and unrestricted permission to everyone in the world to display the content on their web pages.

    You say it is because browsers [by their nature] "ask" for permission to reproduce and, if there is no answer in the negative, then permission is assumed.

    Hmm. Though there may be exceptions, in every area of the law that I'm familiar with the rule is exactly the opposite: if someone wants to use another's property the property owner must explicitly give consent [oral or written]. Not answering the question is NOT consent.

    If you want to flip that rule into "not answering equals consent" because that's just how browsers work, then you need some 'splainin do in Congress. Good luck. Might be a good rule -- but it ain't the one we're living under.

     

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  159.  
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    dnball (profile), Jan 6th, 2010 @ 3:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    See my response above @3:16.

     

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  160.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 3:34pm

    Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    If you don't lock your front door can you still assert your property right in your couch if someone walks in and takes it? Yes.

    Okay, you're not that thick. I'll assume that you just wrote the above statement without thinking and wish to take it back, because otherwise, you're starting down a road you don't want to go down.

    If you can't understand the difference between asking a webserver "can I have this" and the web server saying "yes" and walking in and taking a scarce good away so that it is no longer there, you are way far more confused than I thought earlier.

    So, please, just say you didn't really mean to write the statement above.

     

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  161.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 3:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    So after a hundred or so posts in this thread the question boils down to whether the publication of material on a web page is the same as [or simply is] the grant of blanket and unrestricted permission to everyone in the world to display the content on their web pages.

    No. And again, this is where you lack of technical knowledge becomes clear.

    When you post something on a server, you SET PERMISSIONS. Those permissions grant authorization for others to access that content.

    You say it is because browsers [by their nature] "ask" for permission to reproduce and, if there is no answer in the negative, then permission is assumed.

    No. I am saying that the server DOES ANSWER and ANSWERS IN THE AFFIRMATIVE that permission is granted.

    Hmm. Though there may be exceptions, in every area of the law that I'm familiar with the rule is exactly the opposite: if someone wants to use another's property the property owner must explicitly give consent [oral or written].

    Yes, and when you set the permissions on your webserver, you are explicitly giving consent.

    If you want to flip that rule into "not answering equals consent" because that's just how browsers work, then you need some 'splainin do in Congress. Good luck. Might be a good rule -- but it ain't the one we're living under.

    Again, please, please, please try to understand what is happening, because your ignorance is showing and quite damaging to what you are saying.

    You DO ask permission and the server GRANTS permission. Explicitly. It's how web servers work.

     

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  162.  
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    dnball (profile), Jan 6th, 2010 @ 3:39pm

    Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Otto, my friend, time to take a breath. And maybe have a glass of wine. We've fought the good fight and can now walk off the field with heads held high - glistening and unbloodied by the fight.

     

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  163.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 3:43pm

    Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    However, What is happening is that you are taking somebody's image and putting it into your own content without their permission.

    Again, this is flat out incorrect. You are not putting the image in your content. You are telling any web browser that comes to your page to display the AUTHORIZED image with your content.

    How can the same end result (user sees image on your page) be legal in one method and an infringement with another?

    Fine. Then I will turn that around. Based on your reasoning, EVERY WEBSITE IS INFRINGING, because the user sees an image, made from an authorized server, but reproduced in display on a page locally. After all, as you state, how can the same end result (user sees image on your page) be legal in one method and infringing in another?

    The reason is clear for anyone who took the time to actually understand what is happening: in one case, the infringement occurs because of a violation of the reproduction and distribution rights -- when the user copies the image and hosts in on their own server.

    In the other, that does not happen -- your total misunderstanding of derivative rights notwithstanding.

     

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  164.  
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    Richard (profile), Jan 6th, 2010 @ 3:50pm

    Re: Re: Re: Re: Permission

    "I litigate intellectual property disputes. And in doing so the law that applies is the law that exists -- not what ought to exist. When you're in a conference room and you have the law so firmly on your side [such as in an inline linking situation where "fair use" does not apply -- and those situations are the bulk of them] then the dispute resolves in favor of the copyright owner. Period. Whether it SHOULD resolve that way is not the issue. That question is one our federal legislature needs to tackle -- with input from the tech community."

    AS I have pointed out several time now and you have ignored the statute law may raise the possibility in your mind that inline linking is infringement - however when the P10 case went to court the court decided quite generally that the "server test" is the one that should be applied. You may be able to bully people in a conference room by pretending that the law is on your side - but actually it isn't and it's only a matter of time before you come up against someone who knows what the real law is and stands their ground.

    Please read the full legal decision (pdf) that I linked to - it may help your practice in future to know how the law will actually be interpreted in court.

     

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  165.  
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    ChurchHatesTucker (profile), Jan 6th, 2010 @ 3:53pm

    Re: Re: Re: Re: Re: Re: Re: Permission

    "If you want to guide people to an image, you would just link to it."

    Yes. That's how hotlinking works. I point you (by way of your computer) at the image.

     

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  166.  
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    The Anti-Mike (profile), Jan 6th, 2010 @ 3:56pm

    Re: Re: Re: Re: Re: Re: Re: Re: Permission

    Nope, hotlinking is including the image in the page. linking is providing a link TO the image, which they can follow if they wish.

    As different as coffee and tea.

     

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  167.  
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    No, Jan 6th, 2010 @ 4:00pm

    Re: Re: Re: Re:

    A hotlinked image does not "appear" on your website. Your web browser makes a request from the original website and that website sends the data to your browser and the browser displays the image.

    The hotlink is just text.

     

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  168.  
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    Nastybutler77 (profile), Jan 6th, 2010 @ 4:04pm

    Re: Re: Re:

    However, the video feed isn't being recorded, so how is that a "derivative work?" It's a live feed of what that painting looks like at the moment you see it, not a photo that can be used forever. Much like the telescope example above, you can't claim a live action image is the same as a 'frozen in time' image live a recorded video or photograph.

     

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  169.  
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    The Anti-Mike (profile), Jan 6th, 2010 @ 4:05pm

    Re: Re:

    Mike, when you write stuff like this, you end up sounding incredibly ignorant.

    The entire web isn't infringing on anything.

    On your site here, there are certain images and graphics which are yours (and copyright to you or whoever made them for you, whatever the case is). They are hosted on servers or services you control. Example:

    http://techdirt.com/images/techdirt_logohorizontal.gif

    Now, by including html in your page that tells my browser to get that image, you are providing that image to me. If you own the rights to it, you are inherently granting me rights to view the image. After all, if you didn't want me to view the image, you wouldn't include it in your page, right?

    If you have a link to cnn on your site, http://www.cnn.com that is also not infringing, because you have nothing from CNN on your site. You are only point to it. They can decline your traffic if they so wish.

    Now, if you included an image in your html, in the same manner that you include your logo, but the image was:

    http://i2.cdn.turner.com/cnn/2010/images/01/06/t1main.gilbert.arenas.gi.jpg

    you would be infringing. You are republishing that image as part of your page without rights. It isn't a question of it appears on my browser instead of your browser, that isn't key. It would not be in my browser as part of your page if you didn't inherently tell me you have the rights to use the image.

    Where the image is served from isn't key at all. It is the direct act that you make to actively include the image (not a linking to the image, but making the image as part of your viewable webpage) that changes everything.

    basically, an IMG tag has different properties from a HREF tag. It's pretty basic stuff.

    When you start getting all tied up in knots on stuff like this, I start to wonder more about some of your other ideas, because you are really off the map on this one.

     

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  170.  
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    Richard (profile), Jan 6th, 2010 @ 4:32pm

    Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    ", the US Ninth Circuit court case agrees with me. Google was ruled to have not created a derivative work, but to be displaying the original work as a whole in a fair use manner."

    No actually the ninth circuit didn't consider fair use until it got on to the thumbnail issue - where Google HAD COPIED the inmages. The decision up to that point was that NO INFRINGEMENT HAD OCCURRED.

    You need to re-read the decision.

     

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  171.  
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    dnball (profile), Jan 6th, 2010 @ 4:36pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Ok, last comment.

    First, Mike your Twitter posts stating that IP lawyers aren't logical and should not have anything to say about digital copyright law is stupid, short sided, and arrogant.

    Second, I'm saddened and tired of the arrogance of folks who cloak themselves in self-righteousness because they [admittedly] know more technical drivel than someone else. Knowledge rightly used is to illuminate, not deride.

    Third, at the end of the day the law is about creating a workable and just balance of interests. I suggest that you lift your gaze from the technical minutiae you're cling to and evaluate the interests of all involved.

    Specifically, I disagree that setting access "permission" on a server is the legal equivalent to giving consent to everyone in the world to display copyrighted content wherever someone else wants to display that content.

    Most people who publish content -- on sites where they have control over the server permissions and on those sites where they don't (which is many) -- do not have the technical savvy of you and your acolytes.

    You -- and, admittedly, the Ninth Circuit -- are elevating form over substance. The exclusive right to display cannot be abrogated by technical ignorance. It must be express -- because, as copyright law recognizes in the requirement that only assignments in writing are enforceable and the rule that all copyright assignments revert back to the grantor after 32 years, copyright owners have historically been exploited by middlemen (record labels, gallery owners, publishers, etc.) And now, so you would have it, by everyone who wants to display the copyright owner's content on their websites.

    Setting -- assuming the copyright owner can even set -- a server's status to allow access to a web page is NOT permission for everyone to display that content wherever. And why would you want it to be so?

     

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  172.  
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    dnball (profile), Jan 6th, 2010 @ 4:43pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Yes, Mike, my analogy is just. And now your tone and snide insults are simply silly -- and which do not speak well of your character.

     

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  173.  
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    ChurchHatesTucker (profile), Jan 6th, 2010 @ 5:41pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Permission

    "Nope, hotlinking is including the image in the page. linking is providing a link TO the image, which they can follow if they wish."

    It's a matter of specificity, but they both function effectively the same. I.e., I don't serve (copy) the image in either case.

     

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  174.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 5:42pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    First, Mike your Twitter posts stating that IP lawyers aren't logical and should not have anything to say about digital copyright law is stupid, short sided, and arrogant.

    It was a joke. I'm sorry you did not read it as such. I know many IP lawyers who get this stuff, and I talk to them all the time. In fact, I ran this post by a couple of them first and they agreed with me.

    But the arrogance was in response to your repeated claim that since you're a lawyer none of the tech people mattered.

    Second, I'm saddened and tired of the arrogance of folks who cloak themselves in self-righteousness because they [admittedly] know more technical drivel than someone else. Knowledge rightly used is to illuminate, not deride.

    Heh. Pot, kettle?


    Third, at the end of the day the law is about creating a workable and just balance of interests. I suggest that you lift your gaze from the technical minutiae you're cling to and evaluate the interests of all involved.


    Oh, I agree. But what you are suggesting is not a balance, and not what the courts have found. It is incredibly one-sided and ridiculously dangerous for the future of the internet.

    I am not focused on the "technical minutiae" as you call it. I'm looking at it from the wider view of what this means if you are right -- and what it means is that any webpage, at any time, is infringing on copyright. If you don't see that as a massive problem... then I don't know what to tell you.


    Specifically, I disagree that setting access "permission" on a server is the legal equivalent to giving consent to everyone in the world to display copyrighted content wherever someone else wants to display that content.


    Why? I mean, that's *exactly* what you are saying. You say on the server, anyone who wants to display this content can do so, they just need to make a request and I will grant it. I mean, to argue otherwise makes no sense.

    Most people who publish content -- on sites where they have control over the server permissions and on those sites where they don't (which is many) -- do not have the technical savvy of you and your acolytes.

    It's got nothing to do with technical savvy of the user. That makes no difference. But if you are going to make an argument about how the technology infringes on copyright -- and effectively goes against the very concept of the First Amendment -- you damn well better understand the technology.

    I'm not suggesting the average user needs to understand the technical minutiae at all. But if you're going to argue that it's copyright infringement, you need to. Absolutely.

    You -- and, admittedly, the Ninth Circuit -- are elevating form over substance.

    By which you mean we understand what's actually happening. It is not "form over substance," it's dealing with the actual situation.

    The exclusive right to display cannot be abrogated by technical ignorance. It must be express -- because, as copyright law recognizes in the requirement that only assignments in writing are enforceable and the rule that all copyright assignments revert back to the grantor after 32 years, copyright owners have historically been exploited by middlemen (record labels, gallery owners, publishers, etc.) And now, so you would have it, by everyone who wants to display the copyright owner's content on their websites.

    Again, this is simply NOT true, and I do not know why you repeat it other than that you have lost the argument and you can't seem to bring yourself to admit it. You are giving a written consent in the code on your webserver. Whenever a browser reaches out to the webserver it asks permission. The server says "yes, you have permission." That's exactly what's happening.

    If you claim that that simple process is not a right to display, then it means that every single webpage violates copyright law, because you have not been granted the right to display it on your monitor.

    Do you really wish to go down that road? It's a pandora's box of ridiculousness.

    Setting -- assuming the copyright owner can even set -- a server's status to allow access to a web page is NOT permission for everyone to display that content wherever. And why would you want it to be so?

    I can't believe you would say that. Again, I already explained this -- as did others. You are NOT DISPLAYING it on anyone else's site. It is still displayed ON YOUR OWN SERVER and IN THE BROWSER OF THE USER -- which you already claimed was not infringement.

    The image exists in ONLY those two places -- neither of which are infringing.

     

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  175.  
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    Mike Masnick (profile), Jan 6th, 2010 @ 5:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Yes, Mike, my analogy is just. And now your tone and snide insults are simply silly -- and which do not speak well of your character.

    Heh. It is because you say it is? That's not very convincing.

    The fact is that the analogy is not at all accurate and the problem is that you keep making claims that are just not true. You seem to think that if I create a webpage that hotlinks an image that there's some 3rd space where that image is "displayed" that is neither the authorized place on the server, or temporarily in your browser. That's NOT TRUE. You simply do not understand what is happening, and it is clear in what you are arguing.

    As for my tone, I'm sorry if you cannot take me calling you out when you are incorrect. If you think it reflects poorly on my character, then that is an issue for you to deal with. I am perfectly comfortable with my character.

     

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  176.  
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    Nastybutler77 (profile), Jan 6th, 2010 @ 5:50pm

    Re: Re: Re:

    That should be "like" in the last sentence, not "live."

     

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  177.  
    identicon
    640k, Jan 6th, 2010 @ 6:12pm

    Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Your "steal someone's couch" metaphor is flawed. The argument is that each time a user tries to display the hotlinked image, it asks the host (and hence the rights holder) for permission. That is nothing like walking into someone's house and stealing their couch. Nobody has addressed the fact that developers and users are taking it on good faith that the web server is being honest when it says "here, have the image" when the whole system is designed so that "go away, this isn't FOR you" is a perfectly permissible answer.

    Not allowing people to take the responses of webservers in good faith sets up a terrible chilling legal climate for developers and users.

     

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  178.  
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    ChurchHatesTucker (profile), Jan 6th, 2010 @ 6:15pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    "Hmm. Though there may be exceptions, in every area of the law that I'm familiar with the rule is exactly the opposite: if someone wants to use another's property the property owner must explicitly give consent [oral or written]."

    You do a lot of work for billboard companies?

     

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  179.  
    identicon
    Anonymous Coward, Jan 6th, 2010 @ 6:52pm

    Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    You didn't lock your door, so it's okay for me to walk into your house and take your fridge?

    Comparing electrons to physical goods never really works out, but a closer analogy (given that you leave your images on a publicly accessible server) would that if you left your fridge out next to your garbage, could you really complain is someone took it?

     

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  180.  
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    The Anti-Mike (profile), Jan 6th, 2010 @ 7:03pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Permission

    In one instance, you cause the image to be served (by making it part of the web page) in the other, you only provide a link that the user can use or not use at their discretion.

    One is an integrated part of a web page, the other is just a pointer.

     

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  181.  
    identicon
    Anonymous Coward, Jan 6th, 2010 @ 7:26pm

    I just read through this entire thread and it's pretty much why I've given up on copyright.

    Legalese is a perversion of language and communication. Sure, it's great for when you're being tried for murder or theft or rape but copyright?

    "The first thing we do, let's kill all the intellectual property lawyers."

    Copyright will be rendered obsolete in the near future. Good luck.

     

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  182.  
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    ChurchHatesTucker (profile), Jan 6th, 2010 @ 8:16pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Permission

    Regardless, the same entity is answering your request.

     

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  183.  
    identicon
    davidwr, Jan 6th, 2010 @ 8:37pm

    Accessory to a crime, accessory to infringement

    If you "hotlink" you are in effect "making" the end-user go download and view the 3rd-party image.

    If it's kiddie p0rn and you knew it when you created the hotlink, you are an accessory to distribution to contraband, and I have no sympathy for you. If it was an innocent image and the 3rd party site wanted to "get back at you" by substituting p0rn then you are a victim too.

    If it's an image that the 3rd party site doesn't want people to download directly, the 3rd party site is in a bit if a pickle. If they "merely" put it up without any technical means to prevent downloading and downloading via a link on a 3rd party site, then they can hardly claim that a download is "without permission" and any claim of the end user violating copyright or of you contributing to that violation falls flat.

    However, if they take technical measures to prevent direct-downloading and 3rd-party embedded use, then they are effectively telling the end user "sorry, you don't have permission to download this image directly or via a 3rd party embedded link." If you employ countermeasures to trick the site into giving the end-user the file, then the end-user is innocently violating the copyright and you are guilty of contributory infringement and/or puppet-mastering their web browser into infringing. Either way, you are morally guilty, and possibly legally guilty.

     

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  184.  
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    btr1701 (profile), Jan 6th, 2010 @ 10:04pm

    Re: Re: Re:

    > Since the majority of users are not aware that this is a link to
    > the original, and see it merely as a published portion of the
    > page they are looking at, it can be argued that the technological
    > view is more of a loophole than an actual defense.

    The law does not require (or even allow for) consideration by the court of what the user is aware of when making a determination of infringement.

     

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  185.  
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    btr1701 (profile), Jan 6th, 2010 @ 10:06pm

    Re:

    > f you own a website, and you inline link 300 pictures of child porn

    Child porn is contraband. A mere hot-linked image is not.

    Your analogy fails.

     

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  186.  
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    The Anti-Mike (profile), Jan 6th, 2010 @ 10:12pm

    Almost 200 comments and Mike still doesn't get it.

    Amazing.

     

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  187.  
    identicon
    :), Jan 7th, 2010 @ 12:40am

    Exactly.

    The law doesn't care HOW you do something. The law cares about WHAT you do. That is what makes it a violation or not.


    The courts are sending mixed signals to the public and your assumptions although more informed than your average joe is just assumptions is not the "law" yet, the law or the interpretation of the law to be more precise needs clarification and people I do think have a point when arguing about the "permission" part.

    The internet is a public resource no one will contest that and if you have an open server you can't expect not to be cited, quoted or pointed to is unreasonable to expect that.

    More one can argue that to have something shown on the internet you have to write code and that code set the permissions that you give to people and that directly reflect the wishes of who wrote it, so if we were to see the end result is that someone granted access to that resource and by doing nothing is agreeing with those uses.

    It is not technically difficult to set parameters on your webpages to only accept requests from known "referrers" and it would be sufficient to block any undesired linking, more it would put anyone bypassing that in the clear realm of infringement and end much of the ambiguity. It doesn't even matter if it is easy to bypass the law doesn't care as long as there is something trying to prevent the use the other side would be clearly in violation no ambiguities.

    About not being necessary to understand the technology to use it here is the catch, people should not have to understand the law then?

     

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  188.  
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    Marcel de Jong (profile), Jan 7th, 2010 @ 5:29am

    Re: Re: Re: Re: Re: Re: Permission

    You can (hot)link to you responses, if you use the "Link to this comment" link.

    Btw, ever used Google image search? Those tiny images they show when you click on the images in the search results are actually hotlinked images. If it's a copyright violation, then Google would be in a pickle. Perfect10 already tried that route against Google, and the judge ruled against Perfect10.

    If Google were to make a copy of the image, then you'd have a case for copyright violations, but a hotlink is not a copy. It's a link to the original, not a copy of the original. So it's not a violation of any Copyright law.
    Yes I know it states 'display' in it, but that would mean that I have already violated your copyright, because I can see your profile picture next to your name. (my browser is displaying something that doesn't belong to it)

     

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  189.  
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    Marcel de Jong (profile), Jan 7th, 2010 @ 5:41am

    Re: Re: Re: inline linking as copyright infringement

    If I hotlink an image, I don't touch the image. The original uploader of the image has full control over that one image.

    There are three ways of displaying images:
    1) through a link. [a href=http://www.someurl.to/an/image.jpg]
    2) through hotlinking. [img src=http://www.someurl.to/an/image.jpg]
    3) through downloading the image, and uploading it to my own server. So I go to www.someurl.to/an/image.jpg, tell my browser to download it, and then upload it to my own server and then link to that: [img src=http://server.of.me/with/the/image.jpg]

    number 1: is according to you not infringing, because I redirect traffic to the original image.
    number 2: is according to you infringing, but all I do is redirect traffic to the original image, but without an extra step for the user of my site. So it CAN'T be infringing.
    number 3: is clearly infringing, because I make an actual copy of the image.

    With the first 2, the original owner of the image doesn't have to search out any hotlinks to change it or remove it. He or she only has to change that one copy, to have it changed in every other instance.
    With number 3, the original owner has no such control over the image.

     

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  190.  
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    BBT, Jan 7th, 2010 @ 6:34am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Permission

    An image link does not cause the image to be served. It suggests that it might look nice if the image were served. Web pages are all just suggestions to the user. They can handle those suggestions however they want. Some users browse with images disabled, and they will hear the suggestion of an img link and say "no thanks, I'll just display the alt text".

    And besides, if we're going to use a wonderful active verb like "served", let's not leave out the subject. Served...by the content owner. I'm still confused how anyone could think that the content owner voluntarily serving their own content could be infringement.

     

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  191.  
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    BBT, Jan 7th, 2010 @ 6:42am

    Re: Re: Re:

    Yes, we will trust the technical analysis of a guy who thinks there is such a thing as an "HREF tag".

     

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  192.  
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    Marcel de Jong (profile), Jan 7th, 2010 @ 7:45am

    Re: Re: I'm a criminal!

    However, a webpage where you have a hotlinked image does not constitute a derivative work, as I haven't changed the original picture, it's still the original picture.

    The page as a whole is not 'the work'. The webpage is in fact a collection of works. I own the copyright to the text, and the original uploader of the image has (presumably) the copyrights to the picture. (two different works, not 1.)

    Hotlinking is considered rude on the internet, and frowned upon, but it's not a worse crime than actually downloading the image and then reuploading it without giving credit or asking for permission. The latter is a true infringement of copyright. The former isn't.

     

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  193.  
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    BBT, Jan 7th, 2010 @ 8:01am

    Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    A more accurate analogy would be if you've built a robot capable of English in your unlocked home that you authorized to control who is allowed to take your goods. I ask the robot "Can I take this couch?" and the robot responds "Sure, take the couch. In fact, I will help you by carrying half of it."

    Call me crazy, but if you had built such a robot, I don't think you'd have much of a claim against me if I took your couch.

     

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  194.  
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    Gene Cavanaugh, Jan 7th, 2010 @ 8:24am

    Patent attorney on Copyright

    Right on, Michael! Great article.

     

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  195.  
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    BBT, Jan 7th, 2010 @ 9:09am

    Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    well, to make this analogy valid, you are standing next to the fridge, and I'm specifically asking you "Can I take this fridge" and you are responding "Yes, I will help carry half".

    So yeah, I think I can take your fridge.

     

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  196.  
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    Gregg, Jan 7th, 2010 @ 9:44am

    Re: Permission

    Huh? I don't think you understand copyright law at all. Publishing something does NOT give permission for copies to be made. That is exactly what copyright law is about; it states that the original author maintains the right to determine who can make copies (hence the name "copy - right"). It sounds like you are someone who is of the common but incorrect impression that if it's on the internet, it's in the public domain. That is completely incorrect. If publishing something means that you "therefore have given permission for all the acts of copying..."; then as soon as the first edition of a major book was published, other printers would make cheap copies. They don't, because copyright law prevents making copies without direct permission from the copyright owner. Publishing is not giving such permission.

     

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  197.  
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    Trails, Jan 7th, 2010 @ 9:46am

    Re: Re: Re: inline linking as copyright infringement

    Sure it is. There's this thing called a Referrer header. Here's a link:

    http://en.wikipedia.org/wiki/HTTP_referrer

    Honestly, you seem to be twisting facts to suit your position. Let's go over the specifics here:

    1. The hotlinking site does not possess/host a copy of the image
    2. The hotlinking site provides a browser with a url to retrieve an image, off of the originating server
    3. The originating server is free to reject/redirect any requests it doesn like

    Let's put this in an analogous real world example.

    Joe writes an article. The article deals with DaVinci. The article includes "The Mona Lisa is viewable in the Louvre, Paris France, on the 4th floor, east wing".

    The Louvre is free to deny entry, take down the Mona Lisa, move it to the basement, etc...

    The article's description of the Mona Lisa's location is hardly infringing.

    This is perfectly analogous to hotlinking, except that in the wonderful world of interwebs, the process of seeing the Mona Lisa is sped up.

    A URL, Uniform Resource Locator, is simply an address for an asset. Again, the server is free to deny access based on whatever criteria they want.

     

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  198.  
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    Trails, Jan 7th, 2010 @ 9:52am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: inline linking as copyright infringement

    Not to stop a good thing, but the following:

    "because the ONLY reproduction being made is the the transitory reproduction of the image by your browser."

    Is not quite accurate. The reproduction is in fact made by the server.

     

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  199.  
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    Mike Masnick (profile), Jan 7th, 2010 @ 11:29am

    Re: Re: Permission

    Publishing something does NOT give permission for copies to be made.

    If you publish something online, you have given permission for copies to be made in someone's browser. That's what publishing online means. You are setting the *permissions* on the server to say "yes, your browser may copy this image."

    That is exactly what copyright law is about; it states that the original author maintains the right to determine who can make copies (hence the name "copy - right"). It sounds like you are someone who is of the common but incorrect impression that if it's on the internet, it's in the public domain.

    No one is saying that. Nice strawman.

    If publishing something means that you "therefore have given permission for all the acts of copying..."; then as soon as the first edition of a major book was published, other printers would make cheap copies. They don't, because copyright law prevents making copies without direct permission from the copyright owner. Publishing is not giving such permission.

    Again, no one is making such an argument at all.

    We are just saying that if you post something on your website, without restriction, then hotlinking it is not copying it. There is no copy being made *other than* the one in your local browser WHICH YOU HAVE GIVEN PERMISSION over.

     

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  200.  
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    Otto, Jan 7th, 2010 @ 1:13pm

    Re: Re: Re: Re: Re:

    Regarding the Perfect 10 vs Google case, you're confusing the results. There were two issues in that case:

    1. Thumbnails: Google LOST that part of the case, with a failed fair use defense.

    2. Links to infringing sites: Google won that part, with the court saying that Google wasn't liable for links.

    In other words, that case actually backs up my claims, and refutes yours.

     

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  201.  
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    Otto, Jan 7th, 2010 @ 1:15pm

    Re: Re: Re: Re:

    So, are you suggesting that live broadcasts are not copyrightable? I think the National Football League would dispute you on that one.

     

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  202.  
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    Otto, Jan 7th, 2010 @ 1:19pm

    Re: Re: Re: I'm a criminal!

    Use of one work inside a new work constitutes a derivative work. The courts aren't going to buy your argument of "well, it's not the same work modified, I just used it without permission in something else entirely". I mean come on, be serious. Also, understand this has nothing to do with "hotlinking". It makes no difference how you use the image. Copyright law doesn't have some kind of loophole where it's suddenly okay if you do it one way vs. another way. You used the work without permission in a way that requires permission. That is the very definition of copyright infringement. Also, WTF is "true" infringement? Does that mean that you think hotlinking is some kind of "pretend" infringement or something? I'm sure you can get a judge to see your point of view there... /sarcasm

     

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  203.  
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    Otto, Jan 7th, 2010 @ 1:22pm

    Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    I am educated on this topic, and I have discussed it with multiple well-known, well-respected copyright lawyers.

    Bully for you.

    However, you still need to go have another chat with them about "derivative works" then, because you are incorrect on this topic.

    I have tried to explain to you how you are incorrect, however you don't believe me. I'm truly sorry that I was unable to correct your ignorance.

     

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  204.  
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    Otto, Jan 7th, 2010 @ 1:26pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Let me make this perfectly clear:

    The fact that you can ask a webserver to give you a resource and it does so in no way constitutes an implied permission to use that resource to create derivative works.

    You are violating copyright by using that image in your own work. It doesn't make one little bit of difference that their webserver lets you display the image in a browser, because that is not how you're infringing the copyright.

    The copyright is infringed when you make and publish an HTML page that includes the image inline on that page. It makes no difference if you hotlink or not, it makes no difference if you copy the file to your own server or not.

    You have created a derivative work from the image without permission. That is copyright infringement.

    Seriously, people, how many times do we have to say it before you get it?

     

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  205.  
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    Otto, Jan 7th, 2010 @ 1:33pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Yes, you ARE putting the image in your content. Do you know why? Because THE HTML YOU CREATE IS NOT YOUR CONTENT.

    The final end-result is your content. What the user sees is your content. You're not creating HTML code, you're creating A WEBPAGE. This is what the user sees.

    Ignore the technicalities of it, because lawyers and judges don't give a flying fuck about technical nonsense. You're making a webpage. That other person's image displays on your webpage. You don't have permission. VOILA: INFRINGEMENT. That's the end of the case. You can argue all day long about hotlinks and so forth, but the end result is that you have infringed and will end up paying somebody cash money.

    Got it? This has nothing to do with COPYING STUFF AROUND. Copying files around is not why you're violating copyright here. You're violating copyright because of the fact that you created a derivative work without permission.


    Also, when you load a website, that is not infringement to copy the content into your local cache. There is an implied right to copy the content for the purpose of displaying the webpage because that's why who ever made the thing put it up there in the first place. Considering the content cannot be viewed without making a copy (into memory, at least), then it is an expected part of the process which the author of the work must give permission for in order to display his work at all.

     

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  206.  
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    Otto, Jan 7th, 2010 @ 1:35pm

    Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    You need to re-read it, apparently. Google LOST the thumbnails issue.

     

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  207.  
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    Otto, Jan 7th, 2010 @ 1:37pm

    Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    I'm not confusing the two at all. Google lost the thumbnails issue and won on the in-line links issue. Which agrees with every single word I've said thus far.

    If you think I'm confused, then you're the one who's confused. Try reading what I have written here already without your preconceived biases, please.

     

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  208.  
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    Otto, Jan 7th, 2010 @ 1:41pm

    Re: Exactly.

    Your argument basically says that because technical measures are possible to prevent somebody from doing an illegal thing, that somehow makes the thing legal when those measures are not there? Again, I state that your door being unlocked doesn't give me the right to steal your fridge. Or if you prefer to argue about irrelevant physical/electronic crap, then how about if you leave your car unattended, is it legal for me to take it on a joyride if I bring it back afterwards? It's copyright infringement to use somebody's else copyrighted works in your own without permission. Period. No amount of kibitzing will get around that simple truth. No amount of technical gibberish will change this fact. It's illegal, it's wrong, and you're a dickhead if you do it. Them's just the facts.

     

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  209.  
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    Mike Masnick (profile), Jan 7th, 2010 @ 2:08pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Yes, you ARE putting the image in your content. Do you know why? Because THE HTML YOU CREATE IS NOT YOUR CONTENT.

    Uh, what?!? Above, in a previous comment, you claimed that a URL was not infringing... and yet the HTML we're talking about here is nothing more than a URL.

    So a URL is not infringing, but it is infringing when Mr. Otto decides it is?

    Not gonna fly.

    The final end-result is your content. What the user sees is your content. You're not creating HTML code, you're creating A WEBPAGE. This is what the user sees.

    Indeed. And a part of that webpage is a link where it asks another server "am I allowed to show this in the user's browser?" and that webserver says "yes, that is authorized."

    There is no copyright infringement there.

    That other person's image displays on your webpage. You don't have permission. VOILA: INFRINGEMENT.

    Yes, you do have permission. Explicit permission from the server.

    Got it? This has nothing to do with COPYING STUFF AROUND. Copying files around is not why you're violating copyright here. You're violating copyright because of the fact that you created a derivative work without permission.

    Again, how is it a derivative work when the work itself is not "derived" from the original at all, but IS the original?

    Also, when you load a website, that is not infringement to copy the content into your local cache.

    Huh? Then you just killed your whole argument. If it's not copyright infringement to copy into the local cache, and its not copyright infringement to have an authorized image on an authorized server.... WHERE IS THE COPY THAT'S INFRINGING.

    The copy ONLY exists in two places. (1) On an authorized server. (2) In a browser cache.

    Both of those are legal.

    Where is the infringement?

    There is an implied right to copy the content for the purpose of displaying the webpage because that's why who ever made the thing put it up there in the first place.

    Exactly. I'm dumbfounded. You admit that there is an implied right (and it's not even implied -- it's explicit) and then later you claim it's no longer a right at all?!?

    Do you see why no one believes you? You're not making any sense.

     

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  210.  
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    Anonymous Coward, Jan 7th, 2010 @ 2:19pm

    Re: Re: Exactly.

    Illegality and morality are not the same thing all the time.

     

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  211.  
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    Otto, Jan 7th, 2010 @ 2:20pm

    Re: Re: Re: Exactly.

    True, but in this case, they are the same.

     

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  212.  
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    Otto, Jan 7th, 2010 @ 2:30pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Uh, what?!?
    Uh, you took my quote out of context, so naturally it makes no sense. Please combine it with the quote that you immediately followed it with, as the "content" in those two quotes is the same one.
    Indeed. And a part of that webpage is a link where it asks another server "am I allowed to show this in the user's browser?" and that webserver says "yes, that is authorized."
    Really, now?!? Please show me the part of the HTTP specification that conveys a copyright licensing agreement and/or authorization.

    Until you can do that, your argument holds no water. There is no inherent "authorization" in HTTP, whether it be copyright or otherwise.
    Again, how is it a derivative work when the work itself is not "derived" from the original at all, but IS the original?
    How can it be the original when you've taken part of somebody else's page, cut it out of their page, and put it on your own page?

    Your claims of it being "original" when we're expressly talking about putting it into your own work are silly. Your new work is the webpage you're serving, and it has other people's content being displayed within it. Under any rational view, you're committing infringement.
    Huh? Then you just killed your whole argument. If it's not copyright infringement to copy into the local cache, and its not copyright infringement to have an authorized image on an authorized server.... WHERE IS THE COPY THAT'S INFRINGING.
    There isn't one. YOU DON'T HAVE TO MAKE A COPY TO COMMIT COPYRIGHT INFRINGEMENT.

    Copyright infringement includes the creation of derivative works, and by putting somebody else's images onto your webpages, you're doing exactly that.

    YOU are the one committing the infringement here. Not the viewer of the page. YOU have committed the infringement by creating the unauthorized derivative work, and YOU do that before it ever even gets viewed by anybody anywhere in any browser.
    Exactly. I'm dumbfounded. You admit that there is an implied right (and it's not even implied -- it's explicit) and then later you claim it's no longer a right at all?!?
    You're confusing two entirely different and wholly unrelated things. You don't have to load the page in a browser to commit infringement. The hotlinker has broken the law well before anybody else ever viewed the page.

     

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  213.  
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    Richard (profile), Jan 7th, 2010 @ 2:42pm

    Where all the confusion has come from

    I think the lawyers in our midst have become confused because the legal cases that have occurred on this topic all relate to the following scenario.

    Party A (Alice) holds copyright over some content Z.

    Party (or more usually parties) B (Bob) makes Z available on the internet without authorisation.

    Now Alice would like to sue Bob in the usual way that would have happened pre-internet but for some reason that is not practical. (Bob probably has no money, may be difficult if not impossible to trace, and is likely to be too numerous to prosecute efficiently - or Alice may want to avoid bad publicity associated with suing ordinary members of the public.)

    However Alice notes that the distribution of the copyright material is making use of party C (Carol). Now Carol might be a major company such as a large ISP or Google or alternatively a company that has (arguably) been set up to facilitate infringement (eg the original Napster or the Pirate Bay) or possible something in between.

    Alice therefore sues Carol - claiming "contributory infringement" or something similar

    In all these cases there will be:

    1. No doubt that actual infringement is happening (Bob's activities).

    2. Some doubt as to whether Carol's activities are sufficiently closely related to Bob's to constitute vicarious or contributory infringement.

    3. No motive for Bob to prevent Carol from linking to the files that he is making available.

    Now such a case will most likely turn on things other than the technicalities of how Carol handles her data, links etc- leading some lawyers to become misled into believing that these technicalities could NEVER be the deciding factor.

    When the courts HAVE considered the technicalities (as in the P10 case) they have concluded that inline linking does NOT constitute infringement. If you look at cases which appear to come to a different conclusion you will find that the courts have not considered the technicalities probably because there were other issues that would have rendered such an analysis irrelevant. P10 was unusual in that it was fairly clear that Google (unlike say the Pirate Bay) could not realistically be accused of actively promoting infringement. P10 therefore attempted to accuse Google of direct infringement - which was the reason that the court went into the technicalities on that occasion.

    In other cases (eg isohunt) there were other factors at play - usually the public profile of Carol's business - which meant that the plaintiff did not need to go the difficult route of claiming actual infringement on technical grounds.

    Now in the current discussion Alice and Bob are the same person. Such a case would inevitably turn on the technical issues - but there doesn't seem to have been one that has gone the distance in court. The lack of clear case law allowing the kind of misguided legal speculation that we have seen in the comments on this site.

    The reason why there have been no cases is that all serious content owners know perfectly well how to prevent unwanted inline linking by technical means and aren't likely to hire an expensive lawyer to take years to (maybe) stop a problem that a programmer could fix in a few days at minimal cost.

    After all if you are a serious content owner with a website then you are probably selling downloads. If you know how to do that (which would be impossible if you couldn't control who you served your data to) then you also know how prevent inline linking.

    The only people who do try legal threats to stop inline linking are those whose real motive is revenge for a perceived insult perpetrated by inline linking an image into a "defamatory context".

    They may perceive that copyright law could provide an easier and more certain remedy than libel law. However this is a misuse of copyright law and should fail for the techical reasons given in the P10 case.

     

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  214.  
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    Richard (profile), Jan 7th, 2010 @ 2:59pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    "Really, now?!? Please show me the part of the HTTP specification that conveys a copyright licensing agreement and/or authorization.

    Until you can do that, your argument holds no water. There is no inherent "authorization" in HTTP, whether it be copyright or otherwise. "

    If what you say is true then not only is the web impossible but ordinary life is too.

    The reality is that authorisation is always context dependent.

    IN ordinary life authorisation is implicit

    You wouldn't ask your four year old for formal authorisation to make a photocopy of his artwork to send to his grandmother. Youi wouldn't ask your wife for formal authorisation to create a derived work from last week's shopping list (adding/deleting items according to this week's news).

    In the same way on the internet there is adequate authorisation in the technical protocols for the purposes of the internet.

    I can't believe that you go through life adhering to the concept that you have promulgated here.

     

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  215.  
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    Richard (profile), Jan 7th, 2010 @ 3:07pm

    Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    "You need to re-read it, apparently. Google LOST the thumbnails issue."

    Originally they lost the thumbnails issue - however that was later reversed.

     

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  216.  
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    Richard (profile), Jan 7th, 2010 @ 3:15pm

    Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    You need to re-read it, apparently. Google LOST the thumbnails issue.

    I knew that - but of course on the thumbnails issue Google were copying the files - the thumbnails existed on Google's servers.

    and that part of the decision was later reversed.

     

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  217.  
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    Nastybutler77 (profile), Jan 7th, 2010 @ 3:35pm

    Re: Re: Re: Re: Re:

    I'm suggesting that a live broadcast of a football game isn't a derivative work.

     

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  218.  
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    Mike Masnick (profile), Jan 7th, 2010 @ 3:37pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    There is no inherent "authorization" in HTTP, whether it be copyright or otherwise.

    Let me quote a commenter named Otto, who you seem to agree with in a comment just a little while ago:

    "Also, when you load a website, that is not infringement to copy the content into your local cache. There is an implied right to copy the content for the purpose of displaying the webpage because that's why who ever made the thing put it up there in the first place. Considering the content cannot be viewed without making a copy (into memory, at least), then it is an expected part of the process which the author of the work must give permission for in order to display his work at all."

    So one of you is wrong. I'm just wondering which one.

    How can it be the original when you've taken part of somebody else's page, cut it out of their page, and put it on your own page?

    You haven't cut it out of their page. You haven't put it on your own page. What you've done is said *when someone opens this page in a browser, ask permission to show this image from its original source*

    There isn't one. YOU DON'T HAVE TO MAKE A COPY TO COMMIT COPYRIGHT INFRINGEMENT.


    Heh. Ok, now you've just gone off the deepend. You do, in fact, have to make a copy as part of copyright infringement. No copy, no infringement.

    A derivative work, which is your example to the contrary, is in fact, a "copy" as part of a further work. If there is no "copying" there is no derivative work.

    YOU are the one committing the infringement here. Not the viewer of the page. YOU have committed the infringement by creating the unauthorized derivative work, and YOU do that before it ever even gets viewed by anybody anywhere in any browser.

    But there is NO unauthorized part. Every part of it IS AUTHORIZED.

    And you seem confused, again, about how the web works. When I create an HTML page, all I've done is create that HTML. If part of it includes a link -- which you have ALREADY ADMITTED is not infringing -- then, no, you have not created a derivative work. It's a link!

    You're confusing two entirely different and wholly unrelated things. You don't have to load the page in a browser to commit infringement. The hotlinker has broken the law well before anybody else ever viewed the page.

    Ha! That's simply incorrect. No court in the land would agree with you on that. All you have done in that case is written HTML in which every piece of the HTML is authorized. You can't suddenly say that the HTML (which you already admitted is not infringing) is suddenly infringing.

    You have no consistency at all

     

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  219.  
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    Anonymous Coward, Jan 7th, 2010 @ 7:04pm

    Re: Re: Re: Re: Exactly.

    No, they're not.

     

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  220.  
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    Richard (profile), Jan 8th, 2010 @ 1:55am

    Re: Re: Re: Re: Re: Re:

    A football game isn't even a "work" in the first place - under copyright law. The only exception would be if it was completely "fixed" and pre-choreographed like a dance.

     

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  221.  
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    Steve O'Donnell (profile), Jan 8th, 2010 @ 7:09am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: permission is granted by the webserver as an agent of the rights holder

    Copying is not necessary for a "public performance" infringement.
    This order from NDTX is instructive.

    http://www.docstoc.com/docs/21420483/supercrosslivecom-order
    Of course, there are some shortcomings with that case: the defendant was pro se and the case settled before trial; but it does show that at least one court has a different opinion about whether links can infringe a copyright.

    It's a developing area of law. Just because the Ninth ruled one way does not mean that the rest of the country has to follow. Unfortunately (or maybe fortunately) the economics of suing someone over linking to a file just don't make sense in most situations, so it will probably be a long time before there are enough cases on point to settle this debate.

     

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  222.  
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    dnball (profile), Jan 8th, 2010 @ 5:38pm

    Folks, to my mind there are two copyright issues and one business reality in play: (1) is hotlinking direct infringement, (2) can it be contributory infringement, and (3) does its upside outweigh its downside?

    (1) Direct infringement: Three judges in the Ninth Circuit say hotlinking is NOT direct infringement because the “display” of the work is via the server where the content resides [Perfect 10 case]. Mike and others like that result for its technical accuracy.

    I don’t know of any other court in the country where that’s the rule [called the “server test”] and have argued that its rationale is fundamentally flawed because it elevates form over substance in that the content is most certainly displayed – to the viewer – from the linking site, because the lawful “use” of content by someone other than the copyright owner should be evaluated not purely thru a technical lens but rather under the mature body of fair use law, and because the content owner does not consent to the display of its work via others’ websites simply by the way it codes access to its servers [assuming the copyright owner even has the opportunity and right to code that access – many do not] .

    Otto also argues that the linking site makes a unlicensed derivative work of the linked-to content and Anti Mike argues that the hotlink is an actual reproduction of the content. [By grossly simplifying Otto and Anti Mike’s arguments I concede that much substance is lost]. Let’s not get sidetracked on whether it’s fair use to reproduce a work and publish it as thumbnails – that not being a linking issue.

    My conclusion: Contrary to the Ninth Circuit conclusion, the better reasoned result is that hotlinking infringes, at least, the “display” right owned exclusively by the copyright owner of the linked-to content.

    (2) Contributory infringement: The only practical reason to think through whether a hotlink can be a contributory infringement of the linked-to content is because you’ve already concluded it’s not direct infringement by one of the ways already discussed – by displaying the work, making a derivative work, or actual reproduction. I’m going to ignore the academic issue of whether hotlinking is both direct and indirect infringement.

    Because there can be no contributory infringement without direct infringement it’s necessary to identify how a visitor to the linking site can commit a direct infringement. The only way that’s done in this scenario is by the visitor actually reproducing the content.

    Because it’s settled law that the transitory reproduction of webpage content by a visitor’s server is not an unlawful reproduction [that reproduction being merely an artifact of the way browers and servers work] the actual reproduction must be by downloading the content in some non-transitory form. Which happens all the time when someone right clicks and copies the content or “saves” an image.

    The question whether the linking site is contributorily liable then simply becomes one of applying contributory infringement law: essentially, liability is assessed if one has knowledge of another’s infringement and either materially contributes to or induces the infringement (the precise wording of the test differs among the circuits). That issue has been extensively litigated in the digital realm – especially in the DMCA context when an interactive service provider purportedly loses its safe harbor immunity for failing to remove allegedly infringing content after being given notice. Without any stretch of existing law it’s easy to envision a website being sued for contributorily infringing content by continuing to hotlink to content that the copyright owner has complained is being directly infringed.

    (3) Business reality: Even in the Ninth Circuit a website owner who hotlinks may be a contributory infringer. Elsewhere in the country the hotlinker may also be a direct infringer. In all circumstances, the hotlinker has teed up both issues and, when confronted with a well-funded copyright owner [of which there are many], will have to litigate the matter.

    Business owners who operate websites hire attorneys to help manage these kinds of risks. While many attorneys often take the default position of “don’t do X” because you may get sued, in this situation that’s a supportable, reasonable, real world answer.

    The decision, of course, is ultimately a business judgment [which has been wholly ignored by all commentators in this thread]. Why so many commentators viciously disparage those of us who’re offering analysis on the subject is beyond me.

     

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  223.  
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    Marcel de Jong (profile), Jan 9th, 2010 @ 6:56pm

    Re: Re: Re: Re: I'm a criminal!

    Well as you can probably guess, I don't think hotlinking is infringing, like you do... so that's why I talked about "real infringement" with the download and reupload thing.
    The other two don't infringe on copyright.

     

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  224.  
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    Mike Masnick (profile), Jan 9th, 2010 @ 7:00pm

    Re:


    My conclusion: Contrary to the Ninth Circuit conclusion, the better reasoned result is that hotlinking infringes, at least, the “display” right owned exclusively by the copyright owner of the linked-to content.


    Again, I need to ask *how*? What is displayed? The ONLY time the image is displayed is when a user calls up the page, and the image is called from the server -- from where it is AUTHORIZED -- and then ONLY appears in your browser cache, which, again is not infringement, as you have noted.

    Arguing against this seems to assume -- totally incorrectly -- that the hotlinked image is "displayed" somewhere out on the web in the cloud somewhere. It's not. The only display is in your browser -- which you admit is non-infringing.

    So, please, again, explain how this is a violation of the display right, when the only "display" is done in a totally legal manner.

     

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  225.  
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    Marcel de Jong (profile), Jan 9th, 2010 @ 7:09pm

    Re: There are situations, yes

    you can set up a rule on your webserver that says hotlinking isn't allowed.
    Hotlinking is just someone creating a webpage on their own server, with [img] tags with links to pictures on your server, it's not someone grabbing your images and putting them on their own server. That last part is very clearly an infringement on copyright... and hotlinking is generally frowned upon on the web, so no-one would be surprised if it's set to forbidden on a server.

     

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  226.  
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    dnball (profile), Jan 10th, 2010 @ 7:37am

    A maxim of law is that the law does not concern itself with trifles. Each of your technical justifications for hotlinking are trifles.

    You justify your conduct of making my image appear on your website by arguing that (1) the image is really being sent to your website visitors' browsers by my server [though your visitors do not know that] and (2) because I coded my site to allow "access" that is my consent to you [and to everyone else] to code your webpages so as to make my images appear on any or all of the webpages that you [and everyone else] publishes throughout in the world.

    The first is a trifle because TO THE VISITOR of your site, my image most certainly appears [i.e., is "displayed"] on your site. Your visitors do not know that the image is NOT yours or that my website even exists. You are using my image by showing it to your visitors as if it's yours -- or as if you own the right to show it to them.

    In Perfect 10 the Ninth Circuit acknowledged this subterfuge but concluded that copyright law does not provide the remedy for your website visitors' confusion [leaving open the door for a remedy under other bodies of law, such as unfair competition and false advertising].

    The Court, improperly in my opinion, then considered copyright's display right only from the perspective of the person allegedly doing the displaying instead of from also the perspective of the person DOING THE VIEWING.

    According to the three Perfect 10 judges, while you by your hotlink put in motion the display of my image by my server, that act by you is not technically a "display" by you because it's my server that's sending my image to your visitors' browsers. Trifle. To me, your act is a "display" not only because you made my image appear on your site but because TO YOUR VISITORS my image appears on your site.

    It is highly ironic that you rely on this Ninth Circuit tortured definition of "display" to conclude that you do NOT "display" my image on your website even though it’s irrefutable that your visitors clearly see my image on your site. You deride copyright law as nonsense whenever it suits you but yet here you are seeking refuge in this hyper-technical "display" nonsense to justify your hotlinking.

    It cannot be argued that your website visitors do not see my image on your website. They certainly do -- and so it follows that you are making use of my image. Whenever someone makes use of another's copyrighted work the person must either receive permission or have the legal right to do so (that right coming from the fact that he or she owns a physical copy, has a fair use defense, or one or more of the many statutory grants of permission).

    In Perfect 10 the court did not reach this issue [under copyright law] because it didn’t have to in light of its finding that hotlinkers do not "display" the copyrighted work and so are not infringing its copyright.

    I think the court should have acknowledged the reality that hotlinkers most certainly make use of the linked-to work and should have added that into the mix when considering whether the copyright owner’s “display” right was infringed. When I add it all up – you coding your website to trigger the display of my image on your webpage, the fact that your visitors clearly see my image on your page and falsely believe that my image is yours, and the fact that you’re making use (perhaps even a commercial use) of my image – I have no doubt that you're directly infringing my display right.

    You keep making the argument that “I can hotlink because you gave me permission to do so by the way you coded your website.” That argument only comes into play, however, once the conclusion is reached that you are, in fact, displaying my image – otherwise my permission isn’t needed. So your argument is that when a court concludes that you’re displaying my image via your hotlink it will also conclude that you have permission to do so because I permitted your use by the way I coded my website.

    We'll have to agree to disagree. When I code my website for "access" that is not my consent for you to show my copyrighted content on any and all of your websites throughout the world. You think it is. I think there's a very large, and old, body of law on what constitutes consent and it's that body of law that will apply here -- not some new concept of consent made up for this particular technical situation.

    You think that the fabric of the internet will come unraveled by the legal conclusion that coding a website for "access" is insufficient consent to hotlink. So don't hotlink. Or go to Congress and argue that the internet can't operate without hotlinking. But torturing copyright law for your technological convenience is not the answer.

     

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  227.  
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    Mike Masnick (profile), Jan 10th, 2010 @ 10:53am

    Re:

    A maxim of law is that the law does not concern itself with trifles. Each of your technical justifications for hotlinking are trifles.

    No offense, but to declare the entire underpinning of the web a "trifle" is either obnoxious, stupid or ignorant.

    This is not a trifle. This is extremely important. Because if what you say is true, the entire internet becomes illegal. Think carefully about this, because you are going down an incredibly dangerous path.

    You don't want to do that. Really.

    It is not a trifle. It's being ACCURATE about what is happening. Your attempt to pretend something is happening that doesn't happen is really quite disturbing. And to dismiss those who explain to you what is actually happening as dealing in trifles is wrong to the point of ridiculous.

    The first is a trifle because TO THE VISITOR of your site, my image most certainly appears [i.e., is "displayed"] on your site. Your visitors do not know that the image is NOT yours or that my website even exists. You are using my image by showing it to your visitors as if it's yours -- or as if you own the right to show it to them.

    Again I don not see how this ACCURATE description of what is happening is a "trifle." I think it is an ACCURATE description of what is happening.

    Your response is because someone might be ignorant of what is happening it's a trifle?

    Sorry. No dice.

    In Perfect 10 the Ninth Circuit acknowledged this subterfuge

    Hey! Wake up! It's not "subterfuge" to be ACCURATE and TRUTHFUL.

    You seem to be claiming that ignorance should trump truth. Yikes.

    According to the three Perfect 10 judges, while you by your hotlink put in motion the display of my image by my server, that act by you is not technically a "display" by you because it's my server that's sending my image to your visitors' browsers. Trifle.

    No. ACCURATE description of the TRUTH. I'm sorry if that disturbs you, but isn't it a GOOD thing that a court actually wanted to understand what happened?

    Isn't it a PROBLEM when someone then insists that even though something you wish were happening is not happening that we can ignore reality as a trifle?

    To me, your act is a "display" not only because you made my image appear on your site but because TO YOUR VISITORS my image appears on your site.

    The only way you would see this is if you were entirely clueless about how the internet works. If you really want to suggest that this is the case, you have destroyed the internet. I'm not exaggerating.

    If your reasoning is correct, the ENTIRE internet is illegal, because no server presents the proper "copyright approval" to display ANY content.

    It is highly ironic that you rely on this Ninth Circuit tortured definition of "display" to conclude that you do NOT "display" my image on your website even though it’s irrefutable that your visitors clearly see my image on your site. You deride copyright law as nonsense whenever it suits you but yet here you are seeking refuge in this hyper-technical "display" nonsense to justify your hotlinking.

    No. I am not relying on the 9th Circuit ruling. I'm relying on REALITY. I made this argument without even bringing up the Perfect 10 ruling, and I don't think it makes even the slightest difference, other than confirming at least one court accurately recognized reality.

    Yes, I deride copyright law as nonsense when IT IS NONSENSE. And your interpretation of it here is NONSENSE that would make the entire internet copyright infringement. You do not want to go down that road. You're going to regret it. Seriously.

    Think about this because it's going to cause a problem for you.

    It cannot be argued that your website visitors do not see my image on your website. They certainly do -- and so it follows that you are making use of my image. Whenever someone makes use of another's copyrighted work the person must either receive permission or have the legal right to do so (that right coming from the fact that he or she owns a physical copy, has a fair use defense, or one or more of the many statutory grants of permission).

    *sigh*

    They do not. They see your image on your AUTHORIZED server. And they HAVE received PERMISSION, because when the user called the website, their browser (not MY server) asked YOUR SERVER "do I have permission to show this?" and YOUR SERVER said "yes, absolutely, knock yourself out."

    In Perfect 10 the court did not reach this issue [under copyright law] because it didn’t have to in light of its finding that hotlinkers do not "display" the copyrighted work and so are not infringing its copyright.

    A good recognition of reality.

    I think the court should have acknowledged the reality that hotlinkers most certainly make use of the linked-to work and should have added that into the mix when considering whether the copyright owner’s “display” right was infringed. When I add it all up – you coding your website to trigger the display of my image on your webpage, the fact that your visitors clearly see my image on your page and falsely believe that my image is yours, and the fact that you’re making use (perhaps even a commercial use) of my image – I have no doubt that you're directly infringing my display right.

    Yes, and you can believe pigs fly as well. Doesn't make you right.

    Again, you keep claiming that I "display" your image on my site. But I do not. I put in a link -- a link that we all agree is legal into the HTML code that I right. At no time do I touch your image. All I do is tell the user's browser to ask for permission to display it. Your server then gives that permission.

    It is patently ridiculous to claim any sort of infringement here.

    We'll have to agree to disagree. When I code my website for "access" that is not my consent for you to show my copyrighted content on any and all of your websites throughout the world. You think it is. I think there's a very large, and old, body of law on what constitutes consent and it's that body of law that will apply here -- not some new concept of consent made up for this particular technical situation.

    But I am NOT showing your content ON my website. I am creating an HTML file that tells a user's browser to ask permission to display an image. And your server says yes.

    Don't like it? Change your settings. But to break the entire web... Sorry. I don't want to go down that road.

    You think that the fabric of the internet will come unraveled by the legal conclusion that coding a website for "access" is insufficient consent to hotlink. So don't hotlink. Or go to Congress and argue that the internet can't operate without hotlinking. But torturing copyright law for your technological convenience is not the answer.

    Wow. The only one "torturing" copyright law is you.

    You are arguing that someone creating an HTML file that includes a hotlink is somehow infringing. This is wrong for any number of reasons, but let's look at it in pieces.

    1. The text of the hotlink itself is not and cannot be infringing. We all agree to this, right? So the only way it could be infringing is based on what that hotlink "does."

    2. You claim -- entirely incorrectly -- that the hotlink "displays" the image in an unauthorized manner on my website. How is that possible?

    3. The only time the image is "displayed" is when a user visits my webpage, asking for the HTML and having it displayed locally in their browser cache.

    4. You have already admitted that the local display is NOT in fact infringement, so there is no infringement on the part of the user.

    5. The image only exists in two places. On your authorized server, and in the user's cache (which you have already said is legal). If it's authorized on your server, then that's not infringing either.

    So we are left with a weird situation. The image lives in two places -- neither of which infringe. And yet, somehow you still claim it's infringing.

    How?

    You seem to think that when I create the HTML telling your browser to ask for permission, that somehow *I* am the one displaying your image. However, this goes against common sense, technological reality and the law. At no point do I display your image. There is no version of that whole page display that lives out there in the internet. It is merely an instruction for the user's browser to ASK FOR PERMISSION to view that image. And your server says "okay."

    If you are saying that my browser asking your server for permission and getting it is NOT sufficient to avoid infringement, then the entire web infringes on someone's copyright.

    You don't want that. Really.

    The law doesn't want that. Congress does not want that and (while they may do some dumb things) they most certainly did not intend the law to be interpreted that way.

    I am not relying on "trifles" or on the Perfect 10 ruling. I am relying on reality -- no matter how much you don't want to believe it.

     

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  228.  
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    dnball (profile), Jan 14th, 2010 @ 10:58am

    You write: No offense, but to declare the entire underpinning of the web a "trifle" is either obnoxious, stupid or ignorant. This is not a trifle. This is extremely important. Because if what you say is true, the entire internet becomes illegal. Think carefully about this, because you are going down an incredibly dangerous path. You don't want to do that. Really.

    Response: Your logic is backwards. The issue at hand is whether hotlinking is lawful. You’re complaining, however, about the consequences of the conclusion that it’s not. The consequences of a conclusion, however, are irrelevant to the consideration of the question.

    IF you’re arguing that all hotlinking simply must to legal because the consequences otherwise are dire, then, as previously suggested, convince Congress of that fact and craft legislation to make hotlinking expressly lawful. Arguing that a reasoned conclusion must be founded, even in part, on the consequences of that conclusion is the old “the sky is falling” plea to emotion – it is not reason, nor argument.

    You write: Again I do not see how this ACCURATE description of what is happening is a "trifle." I think it is an ACCURATE description of what is happening. Your response is because someone might be ignorant of what is happening it's a trifle? Sorry. No dice.

    Response: We’ve both accurately defined hotlinking. So what? The issue at hand is whether hotlinking is lawful. Yes, the fact that the linked-to site is from where the image is served is a fact in support of your argument that the linker is not “displaying” the image. But like a jailhouse lawyer you think that fact is dispositive and wins the case. I’ve been patiently [and unlike you, civilly] trying to explain to you that it isn’t. Let’s get this out of the way – while YOUR FACT IS ACCURATE, there are OTHER facts in play. See my previous post. The fact that you think your ACCURATE little technical fact is the ONLY fact that matters demonstrates the difference between someone who myopically focuses only on what he thinks is important and someone who knows how to evaluate the dynamics underlying the law. All junior litigation associates get their hats handed to them when they focus on facts one and two but ignore facts three and four.

    You write: Hey! Wake up! It's not "subterfuge" to be ACCURATE and TRUTHFUL. You seem to be claiming that ignorance should trump truth. Yikes.

    Response: It was the Ninth Circuit that characterized hotlinking as potentially causing confusion – which I labeled “subterfuge.” Causing confusion – subterfuge? The latter is a pretty good descriptor of the former and I’m sticking with it. As for your tenacious belief that simply because your description of hotlinking is ACCURATE, see my comments above.

    You write: No. ACCURATE description of the TRUTH. I'm sorry if that disturbs you, but isn't it a GOOD thing that a court actually wanted to understand what happened? Isn't it a PROBLEM when someone then insists that even though something you wish were happening is not happening that we can ignore reality as a trifle?

    Response: ACCURATE facts can most certainly be trifles relative to other, more important facts. That’s what makes an unimportant – even though ACCURATE fact -- a trifle.

    You write: The only way you would see this is if you were entirely clueless about how the internet works. If you really want to suggest that this is the case, you have destroyed the internet. I'm not exaggerating. If your reasoning is correct, the ENTIRE internet is illegal, because no server presents the proper "copyright approval" to display ANY content.

    Response: The sky is falling argument again? Hyperbole is silly and undermines your argument. I’ve already explained that some hotlinking is quite lawful [to public domain content, to licensed content, under fair use, etc.].

    Your conclusion that ALL hotlinking must be legal or else “the ENTIRE internet is illegal” is just plain silly. Precision in language promotes precision in thought. I commend you to it. Can you not envision a webpage that does not include an [allegedly] infringing hotlink? Yes, you can. Poof goes your hyperbole. Techies want the right to hotlink, I get that. And maybe it makes sense to statutorily put the burden on content owners to code their websites for “no access” or else face the consequence that their coding for “access” is consent for everyone in the world to hotlink to their content. But that’s a change in the law that must be justified – not simply assumed by those who’ll benefit by that rule.

    You write: Yes, I deride copyright law as nonsense when IT IS NONSENSE. And your interpretation of it here is NONSENSE that would make the entire internet copyright infringement. You do not want to go down that road. You're going to regret it. Seriously. Think about this because it's going to cause a problem for you.

    Response: The sky is falling argument yet again? See above.

    You write: They do not. They see your image on your AUTHORIZED server. And they HAVE received PERMISSION, because when the user called the website, their browser (not MY server) asked YOUR SERVER "do I have permission to show this?" and YOUR SERVER said "yes, absolutely, knock yourself out."

    Response: And that is one fact in support of the argument that the content owner should not be allowed to object to your display and use of his content on your website. I know – you’re going to say that the content is “displayed” only by the content owner’s website: and my rejoinder, repeated ad nauseum now, is that that legal conclusion by the Ninth Circuit when parsing the language of the Copyright Act is fundamentally wrong and is one lone opinion by three judges. There’s no denying that the content owner’s content is seen on the linking site and that the viewer has no idea that the content is not part and parcel of that site. That IS a “display” of the content when “display” is used in its ordinary meaning. Whenever a court deviates from the ordinary meaning of a word when it construes a statute it must have a damn good reason. The Ninth Circuit’s reason for construing “display” to EXCLUDE the obvious fact that visitors to the linking site clearly see the linked-to content was a myopic, technocratic construction diametrically opposed to reality and disputable even under copyright law.

    You write: Again, you keep claiming that I "display" your image on my site. But I do not. I put in a link -- a link that we all agree is legal into the HTML code that I right. At no time do I touch your image. All I do is tell the user's browser to ask for permission to display it. Your server then gives that permission. It is patently ridiculous to claim any sort of infringement here.

    Response: But your webpage code tells your website visitors’ browsers to “touch” my image. You’re the same man who tells someone w/o the competence to object to “go the grocery store and take all the money in the cash register.” When you put that unlawful act into motion you’re just as culpable as the person who you instructed to commit the crime. I know – you’re going to say that my coding of my website gave your website visitors’ browsers permission to display my content via their server [the practical result being, of course, that my content appears on your webpage]. You think my coding is my consent for your hotlinking. I’ve already told you that consent law has a long pedigree and should not change to adjust for this technological situation. In short, consent is given only when what is being consented to is clearly understood by both parties. I’ve yet to hear the basis for your argument that it’s so well understood by webpage publishers that coding for “access” IS consent to everyone in the world to show via hotlinking the publisher’s content on every webpage in the world. If you can support that factual assertion then I’d buy your “coding for access is permission to hotlink” assertion.

    You write: At no point do I display your image. There is no version of that whole page display that lives out there in the internet. It is merely an instruction for the user's browser to ASK FOR PERMISSION to view that image. And your server says "okay."

    Response: You’re not listening – because you’re wedded to your jailhouse lawyer mentality that your one fact is dispositive. That technically ACCURATE fact is one of many, however, that needs to be considered when thinking through whether a hotlink is lawful.

     

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  229.  
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    Mike Masnick (profile), Jan 14th, 2010 @ 11:46am

    Re:

    Your logic is backwards. The issue at hand is whether hotlinking is lawful. You’re complaining, however, about the consequences of the conclusion that it’s not. The consequences of a conclusion, however, are irrelevant to the consideration of the question.

    No. This is wrong. We are both discussing whether or not hotlinking is legal and I have shown you why *under the law* it most certainly is legal -- unless you are entirely ignorant of what is happening.

    The only thing that is "irrelevant" is you continually insisting that the law is the way you want it to be. It is not. I am explaining what is happening and why it is legal under the law. Nothing is backwards.

    IF you’re arguing that all hotlinking simply must to legal because the consequences otherwise are dire, then, as previously suggested, convince Congress of that fact and craft legislation to make hotlinking expressly lawful.

    I have argued no such thing. I have argued -- in GREAT detail, WHY it does not violate any section of existing copyright law. No unauthorized copy is made or displayed. The law is not broken.

    Separately, I also explained to you why your reasoning for why you are right not only makes no sense under the law -- as it exists today -- but would also inevitably lead to dangerous results.

    We’ve both accurately defined hotlinking. So what? The issue at hand is whether hotlinking is lawful.

    And I have explained why, in rather great detail, it is lawful. You have not shown what section of the Copyright Act it infringes. You keep claiming that it is an unauthorized "display" but I explained to you why that is simply incorrect. The display happens in two places, both of which you have noted are authorized. There is no third place where the display is happening in an unauthorized manner.

    But like a jailhouse lawyer you think that fact is dispositive and wins the case. I’ve been patiently [and unlike you, civilly] trying to explain to you that it isn’t. Let’s get this out of the way – while YOUR FACT IS ACCURATE, there are OTHER facts in play.

    I find it terribly amusing that one sentence after you insist that you are acting "civilly" you compare me to a "jailhouse lawyer," and mock my understanding of the law.

    Pot, kettle?

    What other facts are at play? I have gone through each of your "facts" and explained why they are not facts. The reason I focused on the "display" is that you hung your hat on the claim that it was an unauthorized display. It is not. I have shown that it is not an unauthorized display.

    So what other facts are there? I am more than willing to discuss all the facts, but the only one you have insisted on is that hotlinking is an unauthorized display -- and in that I have shown that you are wrong.

    If you have some other facts then I am more than willing to discuss them. But do not claim I am ignoring other facts when you have not presented them for me to respond to.

    The fact that you think your ACCURATE little technical fact is the ONLY fact that matters demonstrates the difference between someone who myopically focuses only on what he thinks is important and someone who knows how to evaluate the dynamics underlying the law. All junior litigation associates get their hats handed to them when they focus on facts one and two but ignore facts three and four.

    Yes, very civil of you to toss out condescending lines like that after insisting you've been so civil. Please.

    Again, the reason I focused on display was because that was the only claim you made. If there are other factors that matter here, please explain them so we can discuss them. Otherwise I have no clue what you are referring to.

    Separately, I cannot believe you called an accurate description of what happens a "little technical fact." And, otherwise, how was the play, Mrs. Lincoln?

    That "little technical fact" is not a little technical fact at all. It explains why there is no unauthorized display -- which is (again) what you insisted was happening.

    We have concluded there was no unauthorized display. You have not presented any other reason why hotlinking is infringement, and thus I fail to see what other "facts" I have not responded to.

    It was the Ninth Circuit that characterized hotlinking as potentially causing confusion – which I labeled “subterfuge.” Causing confusion – subterfuge? The latter is a pretty good descriptor of the former and I’m sticking with it.

    Uh, I would argue very different definitions. Causing confusion is not necessarily done on purpose. Subterfuge implies purposeful misdirection.

    ACCURATE facts can most certainly be trifles relative to other, more important facts. That’s what makes an unimportant – even though ACCURATE fact -- a trifle.

    And when you present these secret more important facts we can discuss them. You have not. You have said, repeatedly, that this is an unauthorized display. But it is not, and I explained why it is not.

    If it's not an unauthorized display, please explain how it violates the Copyright Act.

    The sky is falling argument again? Hyperbole is silly and undermines your argument. I’ve already explained that some hotlinking is quite lawful [to public domain content, to licensed content, under fair use, etc.].

    Ok, fine, all minus the de minimus amount of public domain/fair use works. But I can't see how "licensed" works would apply under the standard you describe. Because if I visit a website with licensed work, how does my browser know for a fact it has been licensed? I call it up the same way I call up the hotlinked image: by asking your server for permission, which it gives.

    Your conclusion that ALL hotlinking must be legal or else “the ENTIRE internet is illegal” is just plain silly.

    No, it's not. You are claiming that we can only visit a website that is filled with public domain content, fair use, or properly licensed -- and earlier in this discussion you made clear that, in your belief, a simple web request is NOT a proper license.

    So it is not silly at all. It's quite accurate, minus those tiny exceptions.

    Can you not envision a webpage that does not include an [allegedly] infringing hotlink? Yes, you can.

    Again, based on your description of what constitutes acceptable authorization, there is no non-infringing hotlink other than the rare case of public domain or fair use. You have said that simply having the browser ask the server and getting permission is not enough.

    What am I missing? Is it okay in some cases for the server to give permission, but not others? Help me out, since I'm apparently dumber than a courthouse lawyer.

    and my rejoinder, repeated ad nauseum now, is that that legal conclusion by the Ninth Circuit when parsing the language of the Copyright Act is fundamentally wrong and is one lone opinion by three judges.

    Again, at no point in this discussion did I rely on the 9th Circuit ruling in Perfect 10. I relied on actually looking at what the law says and what is happening. I do not why you repeatedly insist that I am relying on the 9th Circuit ruling. I am not.

    However, that said, if the only other fact you have beyond my explanation of why it is not an unauthorized display is "well the court got it wrong," I have to question your earlier statements above about which one of us is wishing what the law says and which one of us is paying attention to what it actually says.

    So far your facts are "It's display" and "The 9th Circuit is wrong." I have already shown that the "it's display" argument is false, and I am arguing entirely independently of the 9th Circuit, though I will note that you fail to say WHY they are wrong, you just insist they are. For someone to have accused me (incorrectly, I might add) of talking about how I wish the law was rather than how it is, this is not exactly convincing.

    There’s no denying that the content owner’s content is seen on the linking site and that the viewer has no idea that the content is not part and parcel of that site. That IS a “display” of the content when “display” is used in its ordinary meaning. Whenever a court deviates from the ordinary meaning of a word when it construes a statute it must have a damn good reason.

    Huh? Ordinary meaning?!? We have gone through the ordinary meaning and at NO POINT does whoever put up a site with a hotlink display an image. I don't know what to say here other than that you are wrong. I do not see how you can claim that there is a display "under the ordinary meaning" of the law, when anyone who looks at the facts will immediately see there is no unauthorized display. The file lives in two places, both authorized, and is only displayed in a browser, which we have already agreed is legal.

    The Ninth Circuit’s reason for construing “display” to EXCLUDE the obvious fact that visitors to the linking site clearly see the linked-to content was a myopic, technocratic construction diametrically opposed to reality and disputable even under copyright law.


    Yes, we understand that you don't LIKE the fact that the 9th Circuit got it right, but you were the one pointing out that we follow what the law says, not what we wish it to be, right?

    But your webpage code tells your website visitors’ browsers to “touch” my image. You’re the same man who tells someone w/o the competence to object to “go the grocery store and take all the money in the cash register.” When you put that unlawful act into motion you’re just as culpable as the person who you instructed to commit the crime.

    WOW. Robbing the cash register is a crime. Displaying an authorized image from an authorized server is not a crime.

    Analogy fail. And you accuse *me* of hyperbole?

    I know – you’re going to say that my coding of my website gave your website visitors’ browsers permission to display my content via their server [the practical result being, of course, that my content appears on your webpage]. You think my coding is my consent for your hotlinking. I’ve already told you that consent law has a long pedigree and should not change to adjust for this technological situation.

    Again, fine, if the code is not consent, then everything online (with the minor exceptions of public domain and fair use works) infringes, because when my browser calls it up, it is not authorized. Does that make sense? I mean, I guess you could argue that, but I don't see why you would want to.

    I’ve yet to hear the basis for your argument that it’s so well understood by webpage publishers that coding for “access” IS consent to everyone in the world to show via hotlinking the publisher’s content on every webpage in the world. If you can support that factual assertion then I’d buy your “coding for access is permission to hotlink” assertion.

    Ok. I thought I had explained this, but fair enough. This is the foundation of the entire web. You post stuff on your server and make it public -- at that point it is WELL RECOGNIZED that the content is authorized.

    I can point to a variety of examples of proof of this, but I'm sure you remember a few years back when Gov. Schwarzenegger accused Phil Angelides' staff of "hacking" his computers to get a certain file. Except that went nowhere after an investigation showed that Schwarzenegger's staff had put the file on an open web server -- thus making it available and effectively *authorizing* it for anyone to access.

    You’re not listening – because you’re wedded to your jailhouse lawyer mentality that your one fact is dispositive. That technically ACCURATE fact is one of many, however, that needs to be considered when thinking through whether a hotlink is lawful.

    I am listening. I keep looking for these other facts. The only ones you have presented are "it's display" and "the 9th circuit is wrong." I have responded to both. If you have other facts, please present them, and I will look at them in turn.

     

    reply to this | link to this | view in thread ]

  230.  
    identicon
    Anonymous Coward, Jun 3rd, 2010 @ 10:17am

    This discussion extends beyond the copyright issue.

    Mike is using deductive reasoning to build a rationally true syllogism. This is legislative interpretation and deals with the intent of the law.

    dnball points out that laws are crafted with reasoned intent; yet are constantly, and at times inconsistently, interpreted on narrower or broader grounds based on the entirety of evidence presented in a case.

    Who is right? Both are right.

    Unfortunately, the law doesn't decide if you are guilty or not guilty--fallible, persuadable, error-prone humans decide, e.g. judge, jury.

    The point here is you have two options:
    1. Play it safe and get written authorization to link to images.
    2. Play it loose and run the minute risk of litigation.

     

    reply to this | link to this | view in thread ]


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