Is Inline Linking To An Image Copyright Infringement?

from the i-don't-think-so... dept

Copycense points us to a writeup by a patent attorney named Steve O'Donnell about copyright and blogging. Why a patent attorney is writing about copyright is not clearly explained. Initially, since the title of O'Donnell's post was "How many copyrights does your blog infringe?" I thought the post might be one of those blog posts that reminds us how frequently everyone "technically" infringes on copyright incidentally and how this demonstrates how screwed up copyright law is. But, no, instead, this appears to be a serious "warning" claiming that most bloggers are risking the potential of $150,000 fines by using images they find online.

Copycense points out the irony that O'Donnell uses an image in the post itself and notes that the image appears to be in the public domain, but isn't sure. However, I think a bigger issue with the post is hidden in this sentence:

If you find a picture on Flickr, another blog, or somewhere else online and upload it to your own blog (or worse yet, inline link to it from your blog) without permission, you're committing a copyright violation.

First of all, that's not necessarily true. Obviously it depends on lots of other factors -- but I really question the parenthetical. Would inline linking (usually called "hotlinking") to an image be copyright infringement under any circumstance? I understand that it's considered rude and generally frowned upon in internet circles (and, in some cases the hoster of the original file will "get back" at the hotlinker by changing the image to something different... and potentially nasty). But is it copyright infringement? Technically, a hotlinked image is no different than a link to an image. The difference in code is minimal. The image itself is never "copied" onto your server. All you are doing is telling a computer to go visit the original version of the image, which was put there on purpose.

We've had similar discussions in the past about whether or not it could be copyright infringement to embed an infringing video on your site -- and the situation is basically the same with hotlinked images. The content still resides on the original server and is not copied to the new server at all. If the content itself is infringing, then perhaps there's a (really, really, really) weak case for contributory infringement, but in O'Donnell's post, he seems to be implying that even hotlinking to an authorized image would be copyright infringement, and I just don't see how that makes sense from a technological or legal perspective at all.

Filed Under: copyright, hotlinking, images, inline linking