Techdirt. Stories filed under "framing"

European Copyright Society Says Hyperlinks (And Framing) Should Not Be Infringing

Mike Masnick — Tue, 19 Feb 2013 03:16:03 PST

The Spanish Pirate Party points us to a recently released opinion by the European Copyright Society concerning whether or not hyperlinks themselves may be infringing. The paper was written by 19 European legal scholars, concerning a specific case before the European Court of Justice, Case C-466/12 Svensson, which is yet another case of a news aggregator being sued for daring to link its customers to relevant articles. The reporter, Mr. Svensson, argues that even though the aggregator, Retriever, only posted links, they were "making available" the work. The European Copyright Society is not buying it, noting that hyperlinking is much more akin to a footnote:

Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.

This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):
“Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
...
Hyperlinks ... share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”

Basically, since a hyperlink just points you somewhere it's not transmitting the work, there's no copyright violation. The paper goes into significantly more detail, citing case law around the globe to support its position. It also warns the court that while this may seem like a simple issue, it's vitally important to the health of the internet:

The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.

Also of note, is that the opinion paper says that the same reasoning applies equally to "framing." This is a bit more controversial, but we've always pointed out that embedding and framing are no different than linking, since they're merely pointing a computer from where to pull information, and the EU Copyright Society agrees:

In principle, we are unable to see why “framing” as it is often called, should be treated any differently for copyright purposes from hyperlinking.

[...]

In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.

They do say that framing may give rise to other forms of liability, including unfair competition or moral rights, but that is separate from the copyright question before the court.

Considering how much pushback there has been recently in terms of companies arguing that links are infringing, this is nice to see. Here in the US, there's a similar case going on between the Associated Press and clipping service Meltwater. Hopefully common sense wins the day in both cases, and mere linking or framing is not seen as copyright infringement.

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Why The Jammie Thomas Verdicts Return Such Huge Amounts Per Song Shared: It's All About The Framing

Mike Masnick — Fri, 5 Nov 2010 10:00:56 PDT

With the latest jury in the never-ending series of trials for Jammie Thomas-Rasset, awarding $1.5 million, or $62,500 per song, many were wondering how the jury comes up with such numbers that seem so ridiculously out of line with any actual damages. The real problem isn't the jury, but the law. Copyright law has ridiculous statutory damages, which by definition have no basis in actual damages. This leads to purposely nonsensical results like being fined $1.5 million for sharing 24 songs you liked. So why is the jury still picking those numbers? Well, it's all about the framing. If you read the jury instructions to the latest jury, you can see why the jury more or less picked the number it did. Just take this key section:

You are hereby instructed that a jury in a previous trial has already determined that the defendant's infringement of plaintiffs' copyrights was willful. In this case, there is no issue as to the defendant's liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant's willful infringement of the plaintiffs' copyrights.

In this case, each plaintiff has elected to recover "statutory damages" instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

There's nothing specifically wrong with the jury instructions. They're exactly what the law basically says the judge should say. But, if you're the average person in the jury box, these instructions effectively say "pick a number higher than $30,000 and less than $150,000." That's basically it. The numbers are framed right there, and the jury just has to pick. So, the last two juries picked $80,000 and now $62,500. If you're on the jury, you're not really thinking about what this actually means, or if the punishment fits the actions. You're told, by law, you should pick a ridiculously high number, and then you just sorta pick one within that frame, which has already been set for you. If you're told that they can be fined $150,000 per song shared, and you assume that the law must make sense (because who would pass a nonsensical law?), then at no point do you ever consider the reasonableness of such an award. That seems like a pretty bad judicial system, because it encourages frivolous results that very few people can respect.

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Woman Caught Trying To Frame Ex-Boyfriend With Threatening Texts She Wrote Herself

Mike Masnick — Mon, 12 Jul 2010 13:13:20 PDT

All too often, we hear about law enforcement folks complaining about the evils of pre-paid mobile phones, with the idea being that someone (a terrorist?) might use them with no way to track them down. As with the open WiFi bogeyman, it seems that people are ignoring traditional detective-work. Take, for example, this story that reader Stan sent in, of a woman who tried to falsely frame her ex-boyfriend and his sister-in-law by purchasing a pre-paid phone in her sister-in-law's name, sending herself threatening text messages, and then going to the police and accusing the ex- and the sister-in-law of being behind them. While the police did initially arrest the pair, further investigation (by the sister-in-law and ex-) led them to the store where the woman purchased the phone. The salesman there identified the woman as buying it while pretending to be the sister-in-law. Then, the police began investigating where the threatening texts were sent from (I'm assuming they subpoenaed the phone company for tower info), and the location matched with where the text-forging woman was at the time. So, instead the police arrested her and she's now been sentenced to a year in jail.

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ICanHasLawsuit? Pet Holdings Sues Other Site For Framing Failbooking With Better Domain Name

Mike Masnick — Wed, 3 Feb 2010 11:55:00 PST

A few weeks ago, when I attended Public Knowledge's World Fair Use Day, I had been excited to meet the guy behind ICanHasCheezburger, Ben Huh, who was supposed to be on my panel, talking about how the various sites he ran make use of fair use all the time. Unfortunately, at the last minute he had to bail. But given how much the network of sites relies on fair use, you would think that the company he represents, Pet Holdings, would be gentle about suing others on copyright claims. Not so much, apparently.

Jhn alerts us to the news that Pet Holdings appears to have sued the site Failbook.com, over cybersquatting, trademark infringement and copyright infringement. You can see the lawsuit here: Basically, the issue is that Pet Holdings set up a site called Failbooking.com (making fun of poor social networking usage). That site was just launched recently. Someone else, who already owned the site Failbook.com then decided to just use that URL to frame Failbooking. If anything, it seems like this would have been helpful to Failbooking, as it would give them more traffic. While the Failbook.com guy has taken down this message, originally he explained on his site:

There never was a copy of the site under our possession, we've embedded the site, it's a common internet practice
There was no profit on embedding failbooking
The ads revenue from failbook remained 100% to failbooking
Failbooking encourages users to share the fails "Put this fail on your blog: (Copy & paste code)", failbook just did so in an automated manner
There was NO COPY of any copyrighted material
There was NO ALTERATION of any kind of material, nor removal of copyrights
Failbook.com was registered on 02/May/2006, the intention on the acquisition of the domain never was to take advantage of failbooking
The information throughout the lawsuit is misleading, taking advantage of misinterpretation on the use of technology.

On top of that, the Failbook guy points out that there wasn't even a cease & desist or any contact at all. Just a lawsuit. Perhaps there's more to this, but it seems like the Pet Holdings/ICanHasCheezburger guys may have gone on the offensive a little too quickly.

Update: Ben Huh chimes in, both in the comments and via email and makes Pet Holding's case thusly:

1) The owner of failbook.com attempted to maximize the sale price of the domain while trying to trick buyers and users into thinking they were at a legitimate Cheezburger Network site. The owner even tweeted about how easy it was to get traffic this way.

2) The Cheezburger Network was forced to take swift legal action in an attempt to prevent the fraudulent sale of the site (an auction appeared already under way). The filing of the lawsuit prevents the domain transfer and sale from occurring with the registrar in a way a Cease and Desist cannot.

3) We suffered significant expenses and damages because the owner of failbook.com tried to confuse our users and defraud domain buyers. The owner of failbook.com even marketed his domain in the hopes of capitalizing on the success of Failbooking.com.

We have dealt with many domain disputes amicably in the past. However, this is the most egregious case of fraud we have seen. I think it's very clever for him to try to publicly spin his story, but the facts are very revealing. You're absolutely right in that we're a company that relies on the goodwill of our users and fair use. We seriously considered letting the matter slide until we realized that the owner of failbook.com was trying to sell the domain and purposefully confuse our users. We've also contacted the owner of failbook.com several times in order to reach a reasonable settlement.

I'm still not convinced that this is a problem or that any "harm" came to the Cheezburger site. There may, ever so slightly, be a trademark issue if the owner of the Failbook site claimed he was selling a site that was directly a part of Cheezburger/Pet Holdings, but I haven't seen the evidence of that. I could see how a buyer for the site could claim harm against the owner of Failbook, but it's still not clear to me how Cheezburger/Pet Holdings itself was harmed by this or what sort of "fraud" there was. That Failbook tried to capitalize on the situation (and, remember, he owned the domain years before Cheezburger started its site) isn't fraud by itself. I guess I'm still not convinced of why the lawsuit makes sense here.

Update 2: Here's a pdf showing what Failbook.com looked like, which Pet Holdings claims shows the "fraud," though I still don't see the issue. It's just an iframe of the site. Yes, he's trying to sell the domain name, but all the traffic is still going to Pet Holdings, so I'm not sure what the issue is: Separately, the guys behind both sites are discussing this in the comments, so jump in and see what they have to say. Maybe we can see them work out their differences in real time.

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