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hotlinking and copyright infringement
what is your opinion, and are you familiar with any legal precedents?
stapel

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 2202 posted 10:29 pm on Jun 26, 2006 (gmt 0)

"Framing" is the presentation, within a frameset page, of another site's text and graphics as part of your own site.

"Hotlinking" is the presentation, within any sort of page, of another site's graphics as part of your own site.

Both processes present the originating site's content as your own, at the expense of the originating site's bandwidth allowance.

It is my understanding that courts are ruling framing to be copyright infringement. Even thumbnailing is sometimes being ruled to be infringement, depending upon the nature of the use (especially the commerical considerations).

Almost every host regards hotlinking as bandwidth theft and (assuming the image is copyrighted) copyright infringement. But I'm not aware of any legal precedent on this issue.

Opinions? Experiences? Links to legal decisions?

Thank you.

Eliz.

 

hunderdown

10+ Year Member



 
Msg#: 2202 posted 4:10 am on Jun 27, 2006 (gmt 0)

FWIW, I'm of the opinion that the case law on hotlinking is going to be nonexistent or close to it, simply because the money involved is small and thus there is no incentive to litigate it....

vincevincevince

WebmasterWorld Senior Member vincevincevince us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 4:18 am on Jun 27, 2006 (gmt 0)

It's all nonsense. So long as the content is delivered directly from the owner's server then it's not copyright infringement. If I buy a painting, frame it, and sell it at a profit - is that copyright infringement? If I put a book behind glass, is that now copyright infringement?

These cases have missed the crucial point here:-
It is not the defendant who is showing the claimant's web content within his site, it is the browser of the website visitor - go sue Microsoft or Mozilla for the framing and hotlinking

Harry

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 2202 posted 4:50 am on Jun 27, 2006 (gmt 0)

I'm not a lawyer and nothing I say here has any legal value. But I know I disagree 100% with Vince's perspective.

Framing is not like putting a piece of art in a glass frame. If I catch broadcasts from a TV channel and resend it to others, even if I modify nothing from it, I'm sure I'll get sued fairly quickly by the original b roadcaster.

Using the broacast analogy, we can see that the defendant has intents and caused actions that hurt the bottom line of the person being framed or hotlinked.

Second, framing and hotlinking usually involves passing other's work as your own. That of course, is straight copyright infringement.

vincevincevince

WebmasterWorld Senior Member vincevincevince us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 5:00 am on Jun 27, 2006 (gmt 0)

If I catch broadcasts from a TV channel and resend it to others, even if I modify nothing from it, I'm sure I'll get sued fairly quickly by the original b roadcaster.

And so you should. Framing and hotlinking, however, are not re-broadcasting, re-distributing or even re-presenting the work, they are just sending a line of code to the browser which that particular browser decides means that it should take content from a third party and display it.

Browsers are not an innocent party here. They are the entity which is combining more than one work to make a derivative work. It is the browser which does not have the safeguards to stop copyright infringement.

larryhatch

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 2202 posted 5:34 am on Jun 27, 2006 (gmt 0)

Uh Vincevv?

Are you seriously suggesting we blame Firefox or IE or Opera when somebody deliberately
puts your or my content onto their site, whether by framing or hotlinking; in effect
stealing from others who did the original work and who now pay the extra bandwidth?

I'm sure you must know what we think of that.

Was this meant to be ironic like your other post about Google neglect?
That one had me laughing hard! -Larry

vincevincevince

WebmasterWorld Senior Member vincevincevince us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 5:59 am on Jun 27, 2006 (gmt 0)

larryhatch, please don't worry, I certainly do appreciate both sides of the argument, just only one side tends to get put here. I personally think that framing other people's sites or hotlinking their images without prior permission is both rude and wrong. Unfortunately (and I do mean unfortunately) the law is not judged upon what's right and wrong, moral or immoral, rude or polite.

I came to my viewpoint from a technical detached train of thought about what exactly is happening. The question is at what point the infringement is taking place, and, so far as I can see - the only action the framing site took was typing the URL of the site which is being framed. The action of infringement, if there is one, is carried out by the user's browser parsing the HTML of the page. If there was never a visitor to the page then there would never be infringement or the impression thereof, and so the infringment cannot have happened before that point.

I'm not a lawyer but from cases I have seen in the past a point of law seems to be argued upon the most technical and precise aspect of things, not the overall impression.

Sure, webmaster A has caused webmaster B's site to show within a frame deliberately. It could be argued that from the user/browser point of view, it isn't so much 'one site in another' as 'two sites sharing the screen'.

If webmaster A has framed the page with the intention or effect of misleading a visitor into believing that the content is owned by webmaster A and this is damaging to webmaster B then I am with you - it is entirely wrong and webmaster B would be quite justified in taking legal action against webmaster A. The thing I don't think is illegal is using frames on a third party site per se.

Thumbnailing has a clear case against it, I agree with that 100%.

stapel

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 2202 posted 1:22 pm on Jun 27, 2006 (gmt 0)

vincevincevince said: It is not the defendant who is showing the claimant's web content within his site, it is the browser of the website visitor - go sue Microsoft or Mozilla...

That's like saying "The problem isn't the guy who made and sold the Xerox copies; it's that darn Xerox machine!"

I don't know how seriously courts would view this position.

vincevincevince said: Framing and hotlinking, however, are not re-broadcasting, re-distributing or even re-presenting the work, they are just sending a line of code to the browser....

How is displaying Site A's content within Site B not a "display" of Site A's content?

By your argument, if I violate that FBI warning at the beginning of the movie DVD and sell tickets to an unauthorized showing, I'm not re-broadcasting, because I'm just sending an electrical impulse to the system (when I push the "Play" button). Go sue Samsung.

vincevincevince said: I'm not a lawyer but from cases I have seen in the past....

So you're aware of case law...? But you disagree with the verdicts which say that unauthorized (especially commercial) framing of copyrighted content is infringement...?

Please pardon my confusion if I have misunderstood your meaning. Thank you.

Eliz.

eventus

5+ Year Member



 
Msg#: 2202 posted 1:48 pm on Jun 27, 2006 (gmt 0)

Essential for anyone:
Web Law 2005: A Field Guide to Internet Publishing
By: Jonathan D Hart

Quadrille

WebmasterWorld Senior Member quadrille us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 2:04 pm on Jun 27, 2006 (gmt 0)

There are really two separate issues here:

1. Are these methods copyright theft
2. What can you do about it.

Of course hotlinking is theft; theft of bandwidth, and usually of copyright too.

And you can usually set up your servers not to allow other sites to link directly to your images. You've seen sites with image gaps; you can do that too.

It won't stop them downloading, renaming and uploading your images to their sites, but it will stop hotlinking (as defined above).

Of course framing another site's stuff is theft, if your site 'passes it off' as your content; more so if you remove their headers, footers and ads. And it is bandwidth theft. And it is extremely bad manners; a link would be the honest approach.

Stopping it may be possible with 'frames escape' js; if that fails, you can have their site removed (contact the host), or de-Googled and de-Yahoo!'d (and probably de-M$N'd - but I've never tried that one).

Copyright theft is theft, however 'dressed up', and bandwidth theft is theft too. The problem is that while you may be able to stop it, it is rarely economically sensible either to prosecute or sue. Since adsense, copyright theft is more of an issue, as significant income may be attributed to it - but assessing the amount may not be easy.

bird

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 2202 posted 2:11 pm on Jun 27, 2006 (gmt 0)

I don't know about the US, but case law in various european countries is unambiguous, and generally prohibits unauthorized framing of other publisher's content.

The key question is about appearance: In most cases, a web site visitor will not be able to tell the difference between original and framed content. If you make it appear as if some framed content was your own, then you're infringing on the creator's copyright. The same is of course the case for hotlinked images. If you present an image in a context that makes it appear to be your own, then you're infringing on the creator's copyright.

There's a (very narrow) grey area for directories and search engines, when they show the linked pages with a small frame of their own at the top, eg. for rating purposes. In this case, it is obvious to the visitor that the actual page is provided by someone else.

Quadrille

WebmasterWorld Senior Member quadrille us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 2:19 pm on Jun 27, 2006 (gmt 0)

There's a (very narrow) grey area for directories and search engines, when they show the linked pages with a small frame of their own at the top, eg. for rating purposes.
Google won a case about cached pages, on the grounds that it was a temporary use, as well as the clear indication that it was not Google's property. Others have used 'part pages' successfully under 'fair use' provisions of copyright law.

But as you say, these are gray areas - most copyright theft is pretty obvious stuff, and easily proven to SEs and hosts - but not worth the legal fees to chase the perps.

Storyman

10+ Year Member



 
Msg#: 2202 posted 3:15 pm on Jun 27, 2006 (gmt 0)

Hot linking and caching are two different issues. Caching duplicates the entire content whereas hot linking selectively uses content. Hot linkers profit in several ways and chief among them is that the burden of cost is shifted to the originator. Hot linkers are nothing more than net-leachers.

aeiouy

5+ Year Member



 
Msg#: 2202 posted 5:04 pm on Jun 27, 2006 (gmt 0)

I'm not a lawyer and nothing I say here has any legal value. But I know I disagree 100% with Vince's perspective.

Framing is not like putting a piece of art in a glass frame. If I catch broadcasts from a TV channel and resend it to others, even if I modify nothing from it, I'm sure I'll get sued fairly quickly by the original b roadcaster.

Yeah but what if you just called up your friend and said, hey that commercial we love is on right now, tune in channel 3 and check it out.

You are not infringing on anything then... I think VinceVinceVince has an interesting point. By hotlinking or framing an image, you are not actually serving the image up to the other person. They are still getting the image directly from the person hosting it. So it does open up some interesting possibilities.

It would be like someone telling you, you can't link to a page on their site. You certainly can if you want to... All you are doing is pointing the person and their webbrowser to that site. I think the onus is going to have to end up on the holder to protect their images and properties to prevent others from redirecting people to them.

From this standpoint you are MUCH better off hotlinking than copying the image and re-serving it. From a moral standpoint I don't think sites should hotlink or frame images from other sites. That does not mean ultimately it won't be different.

aeiouy

5+ Year Member



 
Msg#: 2202 posted 5:08 pm on Jun 27, 2006 (gmt 0)

Of course hotlinking is theft; theft of bandwidth, and usually of copyright too.

Quadrille, not sure I can agree with that. If I go to a site and later type in a url directly to an image am I stealing badnwidth? Of course not. The server is openly serving the image file to anyone who wants it or types in the URL. It is nice to be accusatory and claim it is theft of bandwidth, but that is really not an accurate offense. Of all the potential legal angles, theft of bandwidth for hotlinking or framing has to be by far the most marginal one.

Heck someone can say he came across the URL to the image somewhere else on the net and just used it from there. How would the person know what else the image went with? It was readily available and directly accessible as a stand-alone item. Linking is not illegal.

Quadrille

WebmasterWorld Senior Member quadrille us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 5:25 pm on Jun 27, 2006 (gmt 0)

duplicate post in error. Sorry.

[edited by: Quadrille at 5:39 pm (utc) on June 27, 2006]

Quadrille

WebmasterWorld Senior Member quadrille us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 5:38 pm on Jun 27, 2006 (gmt 0)

If you type in the URL an image from another site, just to see the image, it's probably OK, though these things do depend on motive.

If you build a page that links to that image (ie republishes someone else's image on your page), that's theft. You using the image as if it were your own - 'passing off'. And you are stealing bandwidth.

Just because an image has a stand-alone URL, and is capable of being used in that way, does not mean it's right to do that. Technical ability and right of use are not one and the same.

The copyright owner has placed the image on his site, intending it to be seen on that page - to use it in any other way, you need permission.

That's copyright law. It's not about physical possession or 'can do'. It's about control and permission.

Of all the potential legal angles, theft of bandwidth for hotlinking or framing has to be by far the most marginal one.

Marginal in what way? I see it as marginal in value, therefore difficult and expensive to prove; I don't think there's any doubt that it's illegal.

Forgive me if I'm misinterpreting your views, but it seems to me that you are confusing issues here; internet theft is technically easy; the amounts of value involved are tiny. that's true. But that does not make it 'OK' - just hard to deal with.

If you created a neat image, and saw it reproduced across the web (without permission), you'd be miffed at their bad manners in not bothering to ask, but you would be entitled to be miffed at losing your reproduction fee - microscopic though it would be.

Copyright theft on the web is little different to copyright theft in the real world - try publishing a magazine with a Disney image on the cover without permission, and the whole print run would be pulped. The crime on the web is no different - just enforcing the law can be tough, and often not worth the candle.

Interestingly, ebay is one of the few places where copyright law is taken seriously - because all those microcents began to add up to real money.

rbacal



 
Msg#: 2202 posted 1:14 am on Jun 28, 2006 (gmt 0)

While copyright is about ownership, it renders unto the owner the right to CONTROL where, how, and in what context the material is presented.

There IS caselaw about framing, BTW.

BigDave

WebmasterWorld Senior Member bigdave us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 1:32 am on Jun 28, 2006 (gmt 0)

I believe that it will always be treated like a fair use analysis, because that is really what it is. How commercial is the use? Does it serve the public good? How much harm does it cause to the copyright holder? Is there malicious intent?

As annoying as the banwidth from hotlinking is, I would be surprised if that was more than a minor consideration in the case. There are lots of legal things people can do to you that use up your bandwidth. /. anyone?

For example, if someone is providing a frame of your site with a commentary on your site design, it is much more likely to pass the tests in court than someone that frames your site just to toss up ads around it.

It will almost certainly make a difference if the frame or hotlink is dlearly credited to the originating site or if it is made to appear as being a part of the framing site.

To me it seems like there are a lot more legal ways to get away with framing than hotlinking. Most hotlinking would probably be deemed to be infringement, but the case would be thrown out because it would be de minimis.

The one for of hotlinking that I wonder about how it would come out in court, and also how publisher feel about it, is the use of a hotlinked image and a snippet to link back to the complete original article.

Personally, I would consider the use of ONE picture from an article that way to be fair use, just as I would consider either the opening paragraph or whatever the blogger considered the most interesting snippet to be fair use with a link back to the entire article.

BigDave

WebmasterWorld Senior Member bigdave us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 2202 posted 1:34 am on Jun 28, 2006 (gmt 0)

There IS caselaw about framing, BTW

Yes, and the results are not considered precident setting because they are in conflict with each other.

Harry

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 2202 posted 3:11 am on Jun 28, 2006 (gmt 0)

<<Heck someone can say he came across the URL to the image somewhere else on the net and just used it from there.>>

Failure to know the law is usually not an argument one can use in courts. Hence, failure to know where an image came from is neither an argument.

willjan

5+ Year Member



 
Msg#: 2202 posted 2:55 pm on Jul 17, 2006 (gmt 0)

Case law is rapidly developing. Perfect 10 vs. Google was a mixed ruling, under appeal. If Perfect 10 wins, the linking issue should be more clear.

It is, in the US, illegal to avoid a copyright problem by linking to another site than in itself is illegal. So, I'd be darn careful.

Willjan

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