That seems a good (and useful) discussion of the US position…but when it gets to the European angle, it repeatedly comments on ‘inconsistency’ - well durr, Europe’s made up of more than one legal system :smack: :dubious:
Yes, that article was probably written principally by and for a U.S. audience (and so has to drive home the point that the uniform law U.S. companies can expect there doesn’t necessarily obtain elsewhere). Also, Europe (loosely put) purports to be moving toward a confederation with (and of course there are exceptions) a legal system that is unified in some respects (see, e.g., the European Patent Office – which does not, however, mean that there is a single “European patent” or “European patent court” – yet). Americans can be forgiven for needing to emphasize that for all the consolidation and unification that may eventually happen in the “unified” Europe, the EU is not yet as centralized (nor its copyright laws as harmonized, namely, unified under a single federal system) as the 50 United States are.
Put differently, all those European courts who arrived at different results purported to be applying/interpreting the same (and nominally authoritative-throughout-Europe) EU Database Directive. This was not simply a case of Denmark exercising its sovereign right to have different common or civil law provisions than does Germany – which is hardly confusing. When different courts construe and apply the same ostensibly-binding law in disparate fashion, its not a stretch, nor judgmental, to call their decisions inconsistent, or even to describe the law as muddled and dubiously-applied by such courts. We’d say the same thing if regional courts in the U.S. reached results 180 degrees apart on the same ostensibly-nationwide federal copyright law (this happens sometimes, though it hasn’t on the deep-linking issue).
Copyright aside (and I do understand the question was about copyright), the reason for the original complaint was probably due to hotlinking.
Hotlinking is linking a file as an element of your page, post, etc. Most often, it’s an image. What you’d do is format your page or post to display a file on another server. Every time the page is viewed, the file is accessed from the remote server.
Commercial sites have to buy bandwidth in blocks that represent how much data is transferred to and from the server per month (i.e., a visitor loading a page). If they exceed this bandwidth, they’re billed for the overage.
A webmaster finding that they’re constantly paying overage fees will look at the server logs for remote servers that are constantly referring viewers to files. If they find a hotlinked file, they’ll send a nastygram to shut down the remote use of the file.
As I said, it’s not an answer to the question, but it’s a likely explanation of the reason for the complaint…
Hotlinking (like in-line imaging) I can certainly understand (and support) as being a copyright infringement. You are using somebody else’s photos as part of your own page without the user’s permission. This seems like a clear instance of copyright infringement to me. I can’t really see a reasonable argument against it being labeled as such.
Simple hyperlinking, though, is a tough sell for me to define as copyright infringement.
I agree, but the type of link isn’t specified and the most typical reaction from a hotlinker is “I can’t even offer a link to your page now?”. Hotlinkers tend to refer to their practice as ‘linking’ in the same way that spammers refer to what they do as ‘just emailing people’ - it’s an absolutely true description, but not an honest one.
That said, I’m not saying that the person in question did this, but that nastygram is exactly what you’d get if you were hotlinking. I’ve never seen anything like that sent out for offering a URL.
Then again, I could be wrong. The user in the example could be dealing with an extremely protective website - it’d have to be a real bunch of fascists. But experience tells me it’s unlikely.
As I said, I’m not offering an answer to the original question, I’m just trying to put it into context by offering the most likely explanation for the nastygram.
As far as I can tell, he’s not doing any hotlinking. At any rate, his archives for the past year don’t currently have any images hotlinked from the tulsaworld.com domain (the only hotlinked images seem to be the usual sitemeters and poll links). The only mentions of that domain seem to be the benign A/HREF hyperlinks (and one email address).
There seems to be some contradictory information coming from the newspaper. In a later post a conversation with an editor seems to indicate that linking is allowed; but that no partial quoting of articles is allowed, only full reproduction (and that only with permission), which seems to be the opposite of the usual fair-use limitations as I understand them (which is, admittedly, “poorly”).
:smack: Well I did say that I could be wrong. Looks like I was.
Now I got nuthin’… I hope someone finds the additional info useful.
One more time, with clarifying detail! “Linking is considered re-publishing, and [when] done [to copyright material] without permission is illegal …”
Didn’t mean to say that linking as such (eg links to Wikipedia) is illegal.
Except that you’re still making an assertion about copyright without the facts to back it up. Please site a case.
Once again, from the website already referenced
Explain to me exactly how linking is “republishing.”
I see with a bit more browsing that what I was referring to as “linking” is more commonly referred to as “inlining”:
“The doctrine of contributory infringement might apply more strongly here because you’ve now set up an automatic mechanism to cause users to copy the picture in a way not approved by the copyright holder. They don’t even know it’s happening, it’s so automatic. It might be akin to you placing a photocopier on the street with a copyrighted photo in it, and a sign saying “press this button for a free picture.” And sending the bill for the copying to the copyright holder of the picture to boot. You don’t make any copies yourself, but it certainly seems to be even worse, from the copyright holder’s viewpoint, than if you had done so”; and “framing”:
“The copyright infringement here is the creation of a composite or derivative work without the permission of the author of the main component. The question, however, is who created that composite work? Who joined together the ad and the web page? In the case of the framer, it was the framer who made the connection”.
Quotes from http://www.templetons.com/brad/linkright.html
I’ve already expressed the opinion that inlining is clearly a copyright violation (I really can’t see how it wouldn’t be), and for the same reason framing is, too.
What you are referring to in the first paragraph is not really the issue on the table here. Here’s the relevant sentences:
Emphasis mine.
Granted, this issue is still clouded in legal haze, and later court rulings may overturn what we already have in case law. The worst I could see the courts doing is limiting post-domain linking (and that I could only reason in exceptional cases), but top-domain linking? I can’t phathom what the argument against it would be.
See, and I completely agree with this, but further research into case law does cloud the issue. While Ticketmaster v. Tickets.com supports this view quite clearly, Intellectual Reserve, Inc. v. Utah Lighthouse, 75 F, Supp. 2d, 1290, (D. Utah 1999), disagrees:
However, the case cited involves a computer maintenance company (Peak Computer) which was using MAI’s diagnostic software to fix computers. “MAI’s software is not sold, licensed, or otherwise distributed to third party maintenance companies like Peak (Perez Dec., ¶ 5).” (from the referenced case.)
Now, IANAL (though I work as a legal assistant), but, to me, this type of temporary copying and off-license use of software is functionally different than the type of copying that takes place when browsing a web page. The later case, Ticketmaster v. Tickets.com, seems to agree.
Now, the crux of the issue in the Intellectual Reserve, Inc. v. Utah Lighthouse case was that the Defendant was liable under the doctrine of contributory infrigement. That is, the hyperlink’s caused users who clicked on it to commit copyright infringement. Since the Court decided that the viewing of a webpage constitutes copying (since the webpage is temporarily loaded into RAM) finding against the Plaintiff for contributory infringement logically follows.
I think this is a rather tenuous position, and more recent rulings have agreed.
But that’s at least one of the arguments.