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.
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?
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.
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.
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.
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.
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.
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.
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.
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].
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, 645646 (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.
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.