BigDave - 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.