I wholeheartedly agree that because inline linking [and, for that matter, the actual digital reproduction of others' works] is so technically easy that our culture has come to accept to most of it as the norm -- the RIAA, MPAA, and BSA efforts in their industries being the exceptions.
I litigate intellectual property disputes. And in doing so the law that applies is the law that exists -- not what ought to exist. When you're in a conference room and you have the law so firmly on your side [such as in an inline linking situation where "fair use" does not apply -- and those situations are the bulk of them] then the dispute resolves in favor of the copyright owner. Period. Whether it SHOULD resolve that way is not the issue. That question is one our federal legislature needs to tackle -- with input from the tech community.
As an aside, the 20 year or so history of digital copyright law can be fairly characterized as a clash between the tech community and the copyright content owners -- colloquially referred to as the battle between Hollywood and Silicon Valley.
I appreciate your comment and your desire to move this debate along civilly.
So your rule would be that the copyright owner must actively search out and locate all the inline links to every one of his or her photographs published on the internet or else the copyright in those photographs ... what: does not exist? is not enforceable?
No. Once a copyright knows or has reason to know an infringement is occurring then, and only then, does he or she have a duty to respond. Otherwise creators would spend all their time policing the world for infringements rather than creating more works.
You note: Linking to the image is telling the user "a guy at this address is showing this picture, you can go there and look". That's not infringement.
Response: You've accurately described a hypertext link but not an inline link. An inline link tells the visitor's browser to access the file residing on the linked-to site and then display it (in the case of a photograph) in the browser. That inline link results in the display of the photograph on the visitors browser. It is that display that infringes the photograph owner's copyright.
You note: If you put something onto the web then you have de-facto given permission for anyone to view that content.
Response: You're just simply wrong. See comment #13 below. You can pontificate all day about what you think the law should be, but it's not rational to assume that what you want to be true is true.
You note: But with direct linking and hotlinking, you're never making the copy of the copyrighted material. So there is no infringement on your part.
Response: Every copyright owner owns a "bundle of rights" that, collectively, comprise a copyright. One of the sticks in that bundle is the exclusive right to DISPLAY the copyrighted work. An infringement does not require, therefore, that a copy be made. See comment #13 below.
In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made.
Publishing an inline link that links to a photograph residing on some other server results in the display of the photograph on the originating site [which is not controlled by the photograph copyright owner].
Assuming that the photograph is not in the public domain and assuming that the display of the photograph on the originating site is not a "fair use," then the act of publishing the inline link IS most certainly an infringement of the copyright in the photograph.
It is irrelevant that techies do not like this result. If you don't like the law, change it. Don't deride those of us who're trying to make sense of it.
You can "balance" any two things. If we're going to discuss balance in copyright law it's necessary to first agree on what's being balanced. Specifically and clearly -- what's on each side of the fulcrum?
Court rules today (August 3, 2009) that the "Mongrol" trademark is NOT property subject to forfeiture because the Mongrols enterprise (the mark owner) was not indicted. http://tr.im/vl1A (pp.8-14)
On the post: Is Inline Linking To An Image Copyright Infringement?
Re: Re: Re: Permission
I wholeheartedly agree that because inline linking [and, for that matter, the actual digital reproduction of others' works] is so technically easy that our culture has come to accept to most of it as the norm -- the RIAA, MPAA, and BSA efforts in their industries being the exceptions.
I litigate intellectual property disputes. And in doing so the law that applies is the law that exists -- not what ought to exist. When you're in a conference room and you have the law so firmly on your side [such as in an inline linking situation where "fair use" does not apply -- and those situations are the bulk of them] then the dispute resolves in favor of the copyright owner. Period. Whether it SHOULD resolve that way is not the issue. That question is one our federal legislature needs to tackle -- with input from the tech community.
As an aside, the 20 year or so history of digital copyright law can be fairly characterized as a clash between the tech community and the copyright content owners -- colloquially referred to as the battle between Hollywood and Silicon Valley.
I appreciate your comment and your desire to move this debate along civilly.
On the post: Is Inline Linking To An Image Copyright Infringement?
Re: Re: Re: Re:
On the post: Is Inline Linking To An Image Copyright Infringement?
Re: Re: Re:
On the post: Is Inline Linking To An Image Copyright Infringement?
Re: Re: inline linking as copyright infringement
So your rule would be that the copyright owner must actively search out and locate all the inline links to every one of his or her photographs published on the internet or else the copyright in those photographs ... what: does not exist? is not enforceable?
No. Once a copyright knows or has reason to know an infringement is occurring then, and only then, does he or she have a duty to respond. Otherwise creators would spend all their time policing the world for infringements rather than creating more works.
On the post: Is Inline Linking To An Image Copyright Infringement?
Response: You've accurately described a hypertext link but not an inline link. An inline link tells the visitor's browser to access the file residing on the linked-to site and then display it (in the case of a photograph) in the browser. That inline link results in the display of the photograph on the visitors browser. It is that display that infringes the photograph owner's copyright.
On the post: Is Inline Linking To An Image Copyright Infringement?
Re: Permission
Response: You're just simply wrong. See comment #13 below. You can pontificate all day about what you think the law should be, but it's not rational to assume that what you want to be true is true.
On the post: Is Inline Linking To An Image Copyright Infringement?
Re: Re:
Response: Every copyright owner owns a "bundle of rights" that, collectively, comprise a copyright. One of the sticks in that bundle is the exclusive right to DISPLAY the copyrighted work. An infringement does not require, therefore, that a copy be made. See comment #13 below.
On the post: Is Inline Linking To An Image Copyright Infringement?
Re:
Your analysis in the article that you've linked to is clearly wrong as a matter of law.
On the post: Is Inline Linking To An Image Copyright Infringement?
inline linking as copyright infringement
In particular read 17 USC section 106(5). The owner of the copyright in the photograph owns the exclusive right to display the photograph. An infringement does not require that a copy be made.
Publishing an inline link that links to a photograph residing on some other server results in the display of the photograph on the originating site [which is not controlled by the photograph copyright owner].
Assuming that the photograph is not in the public domain and assuming that the display of the photograph on the originating site is not a "fair use," then the act of publishing the inline link IS most certainly an infringement of the copyright in the photograph.
It is irrelevant that techies do not like this result. If you don't like the law, change it. Don't deride those of us who're trying to make sense of it.
On the post: Is Balance The Right Standard For Judging Copyright Law?
First Principles
On the post: Government Misusing Trademark Law To Stop Biker Gang
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