Re: Re: Re: Re: And what about the Copyright Clause?
You write: “That a statute is within the power of Congress merely saves the statute from being immediately struck down, it doesn't provide any special force against which the statute can survive the violation of another part of the constitution.”
I would agree with you IF the Copyright Clause simply said: “To create copyright laws.” Which is about the extent of most of the other grants of enumerated powers listed in Article 1, Section 8.
But the Copyright Clause is not so limited. Its text not only grants Congress the power to create copyright laws, it expressly explains WHY “[t]o promote the Progress of Science” and HOW “by securing … the exclusive Right to their respective Writings.”
The only contemporaneous indicator of why this language was adopted comes from James Madison in The Federalist No. 43. Speaking of the Copyright Clause, he wrote: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”
The Founders clearly believed that authors were entitled to a period of exclusive use of their works of authorship and that it was this monopoly – during the term of which the author alone was entitled to commercially exploit the work – that spurred the creation of additional works. Which, on a societal [NOT personal] level, would ultimately “promote the Progress of Science … .”
So, yes, the Copyright Clause inherently DOES provide special force against restrictions that are sought to be placed on the “exclusive Right” that copyright owners have in their works.
The goal of the First Amendment to restrict Congress from making laws abridging the freedom of speech is NOT MORE important than the goal of the Copyright Clause to “[t]o promote the Progress of Science … .” They are, on their face, equal [i.e., my “battle of titans”].
However, when interpreting the law it's a rule of construction that the more specific is to be deemed more controlling than the less specific.
In this case, the Copyright Clause can be no more specific on the issue of our copyright laws and the First Amendment can be no more obtuse. In short, the Copyright Clause trumps the First Amendment when the issue to be decided is how broad copyright law should be: such as, to get back to the point of Mike’s post, the efficacy of the copyright misuse doctrine as a way to level the playing field between creators of works and users of works.
Re: Re: Re: Re: Re: Re: And what about the Copyright Clause?
Congress creates laws that establish courts which, in turn, authorize Artist One to take a portion of Artist Two's work w/o permission and use it in a way that Artist Two does not approve. Congress, through the courts, has, therefore, compelled speech from Artist Two.
Re: Re: Re: Re: And what about the Copyright Clause?
You wrote: "The problem is that IP maximists only pay attention to certain parts of the constitution, like the ability to grant monopolies, but they ignore the parts they don't like, like the parts that say to promote the progress."
The direct answer, of course, is that the Copyright Clause expressly does both: it IS the grant of power to Congress permitting it to pass copyright laws IN ORDER to "to promote the progress." Both are in the very text of the Copyright Clause in Article 1, Section 8. The First Amendment, meanwhile, is silent on the matter.
What you probably meant was that copyright maximists focus exclusively on the Copyright Clause and ignore that portion of the First Amendment declaring that "Congress shall make no law ... abridging the freedom of speech ... ."
I think that your complaint is, in the main, valid. As already noted above, however, I think Professor Olson is guilty of the same bias: he ignored the Copyright Clause and focused exclusively on the First Amendment's freedom of speech clause.
More broadly, however, I think this entire discussion is missing a particularly important fact: very few copyright infringement allegations implicate the First Amendment -- either under our existing law or even [I think] under the expanded influence of the First Amendment that folks like Olson would like to see.
The edict that Congress shall make no law abridging freedom of speech does not mean that ALL speech is lawful. In fact, only since 1976 has the First Amendment been read to prohibit Congress from making laws that limit commercial speech [i.e., speech that proposes a commercial transaction]. Before then, commercial speech was routinely limited by Congress under its Commerce Clause power. [And where were the First Amendment purists then I wonder?]
"Speech" has been broadly defined, rightly, to include oral, written, and expressive communications. But some speech is so detrimental to society that the Supreme Court has told Congress it may define certain speech as unlawful -- e.g., words inciting to riot, obscene material, child pornography, and [like it or not] material that infringes a person's copyright [and, by the way, material that infringes a person's trademark].
In addition, the freedom of speech clause prohibits Congress from COMPELLING a person to express certain views - a fact very much ignored by mashup artists who, w/o permission, insert others' works into their own which creates, some say, an unwanted affiliation between the original artist and the new work.
Don Henley, for example, is suing someone right now for using two of his melodies to make political parody songs. See http://j.mp/a9ToxM . He argues that the parodist should not have the right to create a new work that results in Henley being associated with the parody. Wouldn't it be delicious irony if this liberal demi-god's lawsuit is the one that dramatically CURTAILS fair use? Henley the copyright maximist. Who'da thought?
In any event, the First Amendment is generally only implicated when copyright infringement allegations involve artistic works and news reporting.
Copyright infringement allegations involving commercial speech other than news reporting [advertising, product placements, marketing proposals, etc. etc.] and the bazillion non-fiction literary works do NOT implicate the First Amendment [normally]. In those situations, Congress has the right under the Copyright and Commerce Clauses to prohibit speech.
All of which is to say be careful when relying on the First Amendment to protect speech -- it is not as powerful as you may think.
I think you're trying to say that if tension [or outright conflict] arises between a provision in the body of the Constitution and the First Amendment to the Constitution then, in that battle, the First Amendment must prevail.
Under very settled Constitutional jurisprudence, that's clearly not true.
Don't forget: the body of the Constitution is the grant of certain enumerated powers to our federal government while the first ten amendments are limitations on those powers. The "granting" provisions and the "limitations" provisions work together -- none [in your words] "overrides" the other.
What Olson has done is to implicitly posit a different tension -- pesky, overreaching Congressional copyright statutes vs. the First Amendment. In that battle, the First Amendment [he says with awe] should properly win.
But that's not the tension in play when considering the copyright misuse defense - copyright misuse being the attempt to improperly expand the scope of a copyright. The tension in that context is between the Copyright Clause and the First Amendment. In that battle of titans the First Amendment [he says demurely] does NOT win. It has met its match -- not pesky little statutes.
In short, ignoring the Copyright Clause of the Constitution [in fact, demeaning it] while sanctifying the First Amendment to the Constitution is the only way that Olson's approach to the copyright misuse defense can work. That is, divorcing it from the economic motivations and marketplace conduct that animates the Copyright Clause.
I won't address whether the nearly universal academic bias against economic pursuits and in favor of unfettered speech may have played in Olson's formulation of his approach. I will repeat the cliche that when you come to a "problem" with a particular mindset the solutions you come up with are preordained ["if you only have a hammer every problem's a nail," etc.].
As a copyright mediumist, I think that others who believe as I will thoroughly enjoy Professor Olson’s thoughtful article.
However, the only way the First Amendment can provide the sole policy underpinning for the copyright misuse defense is if the Copyright Clause in Article 1, Section 8 is ignored – which is precisely what Olson has done.
In fact, he subtly disparages the “public policy” basis for copyright law and dismisses the Copyright Clause as one of a number of “competing policies” for copyright law’s very existence [see pp. 45, 46 -- which is as close as Olson comes to even mentioning the Copyright Clause].
The Copyright Clause is not, however, a “competing” policy – it is THE policy justifying the existence of copyright and THE grant to Congress conferring upon it the right to pass copyright laws: that grant being in the body of the Constitution and all and, by the way, unlike the First Amendment, specifically addressing “the exclusive Right” of authors to their writings.
Olson relegates to footnotes 279 and 280 the Supreme Court’s various, clear, and consistent pronouncements that it’s the economic incentive that motivates the creation of new works and which justifies the monopoly rights conferred by the Copyright Clause [which is the SOLE source that justifies – indeed compels – our copyright laws]. But that IS the law that explains why copyright exists -- the First Amendment being silent on the matter.
So … while a potent copyright misuse defense is, in my opinion, a good and useful tool to help level the playing field between creators and users it is doctrinally WRONG to divorce it from the economic rationale for copyright [as reflected in the copyright misuse context by antitrust and anti-competition law] as Olson has proposed. In short, it's quite incorrect, at best, to structure a "solution" if you ignore the "problem."
Because the misuse defense is a plea for equity [even in Olson's view] a court considering the plea must evaluate the copyright owner's interest in the matter -- and because that interest is economic [both doctrinally and as applied to the facts of the dispute] the court must, as a very practical matter, consider the economics of the situation. Which gets us right back to at least antitrust and anti-competition law -- and NOT solely inquiring into how best the goals of the First Amendment can be met.
Ah, the "I care more than you" card. Hmm, let's see, is that reasoned argument or a way to excuse the lack of an argument? It's the latter of course and, hypocritically, the same irrationality of which you accuse me.
As for "explaining the basic rationale for how we believe the law was intended to work" you have not -- except to say that because sampling doesn't "take away" from the sampled work or affect the market for the work it should be lawful. Which simply assumes that those are the two relevant criteria and which ignores completely the very basis our Constitution has established as the motivator for creating copyrightable works: the economic incentive.
If you want to undermine the economic incentive to create by making it lawful to reproduce portions of existing works [yes, yes, excepting fair reproductions] then you need to explain why that makes sense. Otherwise you're just whining.
You write: " ... first amendment principles have long been a part of fair use case law. On that front, you are either being disingenuous or are uninformed."
My only mention of fair use was to laud the statutory non-profit educational fair use factor. That statutory recognition -- indeed command -- is clearly a GOOD thing. How is that disingenuous and of what am I uninformed?
In my original post I linked to the American University study that chronicled how difficult it is for documentary film makers to clear the rights to all the existing works used in their films. I recognize, just like everyone else on the planet, that existing law throws up insurmountable hurdles before those who want to create new works that incorporate existing works.
Like the dog that didn't bark, however, the absence of any alternative from you leads me to conclude that you have none -- and are simply griping. Which everyone does. I'd prefer a conversation that moves the discussion forward instead of one that simply rehashes [for the umpteenth time] the problem.
I did not argue “that all creation based on the works of others must be permission based … .”
I argued that the owner of the sampled work “may very definitely have a valid infringement claim” and, absent a persuasive argument that there’s no substantial similarity between the works [because of de minimus use or modification] or a defense [such as fair use] then the mashup artist infringes. If the mashup artist has such an argument or a defense, more power to him: create w/o permission. But if he doesn’t, then his compilation work is NOT protected by the First Amendment.
The “minor case law” I found quickly cites two US Supreme Court decisions for that proposition. You might not like the rulings, but that’s our highest court’s interpretation of our First Amendment. If infringement, then no First Amendment protection. Again, full stop. Your assertions otherwise [I can’t call them arguments] are frivolous.
As for your claim that I’m arguing by tautology [which is when the premise of an argument is the same as the conclusion] you are, again, wrong. I mentioned that the fair use of a work is not an infringement of the work and, therefore, the First Amendment protects fair reproductions. I mentioned this to counter your assertion that “the courts have long sought a balance [between copyright law and the First Amendment] which is a hell of a lot more nuanced than ‘you infringe, there is no First Amendment right.’ I mean, hell, all of fair use case law says that's wrong and you know it. Why would you state otherwise?”
Your statement – i.e., that fair use law says that infringements are protected by the First Amendment – is most certainly wrong. So I made clear that if a reproduction is fair there is no infringement [and so sample away]. No tautology, no sneaky wordsmithing. Just good ole fashioned argument.
As for the academic tomes that you’re hoarding, they certainly have their place in the debate over the proper scope of copyright protection and the interplay between copyright law and the First Amendment. But that’s all that is: an academic debate. Until Congress amends our copyright law to permit folks to make “substantially similar” copies of others’ works [which would permit the reproductions you euphemistically call “samples”], then all you’re doing is griping about how the system is just not working for you. You want folks to be able to freely make substantially similar copies because you think that’s good for society.
So you need, therefore, to come up with a better system – one that’s consistent with the Patent and Copyright clause in Article 1, Section 8. If you try, then start at square one: "[I]t should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).
So whatever system you come up must conform to this Constitutional touchstone – i.e., your system must be based on “the economic incentive to create.” You may be able to convince Congress that the reproduction of portions of copyrighted works which are then used to create new works is not an infringement of the original work. Good luck with that.
Your premise that the First Amendment authorizes -- or condones or justifies -- the infringing copying of works of authorship is just plain wrong. Even when the copying is done for the sake of "progess."
I don't have time to track down the controlling case law but the following are two cases quickly located that regurgitates the relevant law: http://j.mI p/dAyBiX [at p. 563 of the opinion] and http://j.mp/cA0Fdg [at p. 43 of the opinion]. In short, speech that's copyright infringement is not protected by the First Amendment. Full stop.
Whenever the premise of an argument is wrong everything that follows is unsupported chatter. Which doesn't mean that it's not interesting chatter, it just can't form the basis for a reasoned -- or legitimate -- conclusion. Like yours.
A fair use of a copyrighted work is, by the way, not an infringement so fair reproductions do not offend the First Amendment. Which leads us right back to the nub of the issue: is the copying of a portion of another's work w/o permission copyright infringement?
If yes, then the mashup in which the reproduction is inserted is unlawful. If no, then it's not. Leave your copy of the First Amendment at home, it ain't relevant.
What is relevant is the statutory definition of copyright infringement.
Nowadays, all copyright rights are created by Congress. Congress can simply declare that copyright does not attach to 15 second song excerpts -- or to 10 second long video clips or to just three lines of poetry or to any photographs that show only an apple, or whatever variations they can rationally argue "promotes the progress."
If you want mashup artists to have the right to copy snippets from other artists' work w/o permission then you need to convince Congress that's a good idea. But as of now, the artist who created that snippet may very definitely have a valid infringement claim.
Why I engage in these discussions with you, Mike, is beyond me. Your arrogance way too often blinds you to all realities that are not sitting on the tip of your nose.
A "pesky First Amendment thing?" Hmmm. Speech that infringes a copyright is NOT PROTECTED by the First Amendment. Period. So stop resorting to throw-away lines and realize that the question is whether the particular sampling is an infringement or not. Throwing the "free expression" and "First Amendment" lines around as if, by magic, they alone win your argument is infantile.
Who decides whether a particular reproduction [whitewashed by the term "sampling"] is an infringement or not? You? The alleged infringer? How about, oh let's say, that the CREATOR of the reproduced content has a say in the matter.
Is copying and republishing someone's four chord riff an infringement? How about twenty chords? How about copying and republishing the refrain "Why don't we do it in the road?" -- a simple sentence that is [with one exception] the entire lyric of a Beatle's song. Can someone reproduce Lennon's version of that line and plop it in their song just because they want to?
Oh, I forgot, according to YOU the "new" song doesn't take away from the old and does not diminish the market for the Beatles song. So it's alright. And you get to decide that why? I'll tell you: because [whether you even know it or not] you've bought into the concept that creation of new is more important than protection of the old. And that you have not supported by argument or reference to anything other than "free expression." And, by the way, the creation of new is not really "new" when the old [the "sampled" content] literally forms part of the new. How about promoting the really new?
Even more fundamentally you don't even seem to realize the internal inconsistency in your position. You're asserting that creator 2's right to create is more important than creator 1's right to control what he created. That tees up artists to fight artists. Just what they need. Well done.
Mashups of every genre are clearly "creative." That's not the issue. The issue is whether the mashup artist has the right to sample w/o getting permission from the artist whose work was sampled. Articulate why the mashup artist has that right and you'll move the discussion forward.
Kembrew – Got it. I didn’t take away that fact pattern from Mike’s piece.
So the problem is that you want to include in your film a song created by compiling bits from other songs -- and you’re annoyed that you have seek permission from the creator of each one of the bits.
I don’t understand your annoyance.
It’s useful to take the issue out of the “digital world is different” paradigm to demonstrate that your annoyance is not warranted.
Fred, Suzy, Bill, and Jose each paint a painting. George takes a qualitative important bit from each and blends them into a new painting of his creation. Because of Fred, Suzy, Bill, and Jose’s contributions, Pete likes “George’s” painting and wants to use it to advertise his grocery store [or whatever].
Why should Pete be able to use “George’s” painting w/o first getting permission from Fred, Suzy, Bill, and Jose? If customers respond to Pete’s advertisement that’s a result of those artists talents. What’s the basis for Pete simply using their work w/o permission? There is none.
I get it that your film is educational and provides a public service. But so does every documentary film, every private hospital, every private school, every everything that provides society-benefiting services [perhaps even Pete’s grocery store]. The educational benefit of your film does not justify ignoring Fred, Suzy, Bill, and Jose rights in their artistic works [non-profit educational institutions rightfully have a statutory leg up in the fair use analysis]. Artists already have a tough time making a living.
If I were Fred, Suzy, Bill, and Jose – or whoever bought their rights – I’d be pissed that your using my work in your film w/o paying me. You’re making money on, in part, my work. So ask me. And I can say yes or no.
Compilation works have around for centuries. The only thing new about creating a compilation work via "sampling" is that it's so easy to do with digital content. We may come to a point when, as a society, we conclude that the vast numbers of new works made possible by this ease is more important than respecting the rights of the individual artists whose works have been "sampled." But we've not yet made that decision [though perhaps we should]. You, however, have no right to make that call on your own.
“Yes, five companies, each of which need to grant their approval and … if one of the five (or, in some cases, more) companies demands a higher fee, all of the other co-owners need to get that higher amount as well. It makes it prohibitively expensive.”
Good article, but this last bit is just not true.
Each joint owner of a copyright has the right to grant non-exclusive licenses authorizing others to use the work even WITHOUT the consent of the other joint owners. The terms of that license are whatever that joint owner and the licensee agree upon. The license-granting joint owner must, however, pay the other joint owners their proportional share of the royalty earned from the license.
Sometimes joint owners will agree among themselves, via contract, that all must consent to any licensing arrangement but the law does not require them to enter any such agreement. If they did so agree but one of the joint owners licensed the work anyway, the license would still be valid [assuming the licensee did not know about the owners’ licensing restriction] and so the licensee could use the work – the remedy for the other joint owners being a breach of contract action against their wayward joint owner.
Acquiring rights to use copyright works IS way too complicated and onerous. But not as onerous as you've made it out to be. A good research paper on the subject from the documentary film world is here: http://j.mp/1im2Jd
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.
There's a misconception implicit in this entire line of thought. Inventors are incented to invent by the marketplace that exists for their patented inventions. Whether the invention is ever put into use is irrelevant.
There are innumerable companies, organizations, and academic institutions that do not "use" the inventions they patent.
IBM, for example, makes far more money licensing its patents than it does making and selling products. Backyard inventors, Universities, and our federal and state governments also make a lot of money through licensing the patents they own. Whether their licensees actually use the licensed technology is up to each licensee -- which does not negate the fact that the patent-owning inventor has earned a benefit from his or her inventive efforts.
A rule that requires the invention to be put to use as a condition for patent protection would fundamentally UNDERMINE the incentive function of patents.
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.
I have a serious question: Why take the time to flame?
I get it that flaming may satisfy some primitive, blood lust impulse and may even satiate an ego need, but really, are those the aspects of our psyches that we should be presenting to the world?
At the end of the day, civility is far more fun because you get to play with ideas -- good ones, bad ones, and really odd ones. And if you just have to be snide, then resorting to wit or Latin is pretty satisfying.
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.