FC: EFF replies to Politech post over linking vs. image importing

From: Declan McCullagh (declanat_private)
Date: Fri Mar 08 2002 - 23:30:32 PST

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    Previous Politech message:
    Date: Thu, 28 Feb 2002 22:31:08 -0800
    Subject: Kelly v Arriba linking case
    From: "Fred von Lohmann (EFF)" <fredat_private>
    To: Declan McCullagh <declanat_private>
    CC: EFF IP <eff-ipat_private>
    You said:
     >[EFF says in its press release below that it is defending the right to
     >link and that the recent Ninth Circuit court decision threatens that
     >right. I respectfully disagree. You can believe strongly in the right to
     >create [a href=""] hyperlinks without applauding Arriba/Ditto.com's custom
     >of displaying remote images from another site via [img src=""] tags. The
     >two concepts are logically distinct.
    While I agree that the concepts are distinct as a technical matter, they are
    *not* distinct when analyzed as "public displays" under the Copyright Act.
    That's the danger -- the rationale used by the court cannot be limited
    solely to "img src" links.
    The rule adopted by the Ninth Circuit boils down to this: by transmitting a
    URL, you have *directly* infringed the public display rights of the
    "linked-to" web site. For copyright purposes, that the transmission was an
    "href" link v. a "img src" link is irrelevant.
    This is not the same thing as saying that web site owners should be
    powerless to control all types of linking. For example, if you frame a site
    in a way that misleads people, there may be unfair competition laws that can
    be involved. And even in copyright, there could be contributory infringement
    liability in certain circumstances.
    But if you reach for the wrong legal implement to get at the problem (as the
    Ninth Circuit did in this case), the collateral damage to legitimate
    activities can be severe (as demonstrated with the "trespass" theory that
    has resulted in ridiculous court decisions that have chilled legitimate
    Our brief:
     >there seems to be little reason for Arriba/Ditto.com to import and display
     >the remote image; an [a href=""] hyperlink from the fair-use thumbnail to
     >the original page should suffice.
    Ditto's practice was to open 2 new windows -- one with the original page on
    which the image appeared, one with just the image itself in a new window of
    its own. Under the court's analysis, *either* link constitutes a direct
    infringement of the display right (absent a defense you can prove in court).
    BTW, I hereby grant you and Wired News permission to include the link to our
    brief on your web site and in your email. Oh, and also permission to link to
    <http://www.eff.org>. Because without EFF's permission, transmitting either
    URL could well make you liable for directly infringing EFF's public display
    Fred von Lohmann
    Senior Intellectual Property Attorney
    Electronic Frontier Foundation (www.eff.org)
    fredat_private  +1 (415) 436-9333 x123
    Date: Fri, 1 Mar 2002 10:17:36 -0800 (PST)
    From: Ethan Ackerman <eackermaat_private>
    To: Declan McCullagh <declanat_private>
    Subject: Re: FC: EFF Arriba framing brief - a second look
    In-Reply-To: <>
    Greetings Declan,
    While 2-cent alarmist emails about how a recent court decision will tear
    at the very fabric of society are often worth about 2 cents, I'm taking a
    minute to offer my thoughts on the EFF amicus brief, and your opinions.
    Share as you see fit.
    You have hit the nail on the head in extracting the two main holdings of
    the case, and recognizing the social use distinction between "a href="
    hyperlinks and "img src=" hyperlinks.  The first is clearly the backbone
    of the web, and the other is (often but not always) an asocial nuisance that
    usually appropriates another's bandwidth and creative energy.
    Asocial nuisance aside, I think "img src=" links, or inline links as the
    court calls them, are a fundamental part of the web, and it is actually
    NOT consonant with current copyright law to suggest that such links are a
    direct infringement.  EFF does ably point out the real and important
    distinction between direct and contributory copyright infringement that
    this case turns on. There may well be a real question of whether or not
    such links are contributory, something the court can hammer out on remand,
    but the case is worth revisiting, because the court did not get things
    quite right, likely because it misunderstood the ways the html works.  I
    think that the judges will be receptive to EFF's brief
    about this, Judge Fletcher especially is willing to "get things right"
    when it comes to how a technology works.  (She was where the buck
    ultimately stopped with Bernstein's crypto export cases.)
    Ethan Ackerman
    Senior Research Fellow, Center for Law, Commerce & Technology
    University of Washington School of Law
    1100 NE Campus Parkway
    Seattle, WA 98105
    Tel:  206.440.0853/Fax: 206.616.3427
    Date: Tue, 05 Mar 2002 13:48:18 -0500
    To: declanat_private
    From: Doug Isenberg <disenbergat_private>
    Subject: An ex-Penthouse lawyer on the Kelly v. Arriba Soft case re
       thumbnail images
    In-Reply-To: <>
             FYI and Politech:
    In a landmark case, a U.S. court of appeals has ruled that posting small, 
    "thumbnail"-sized images of another's aesthetic photos on a web site is a 
    fair use -- and therefore not copyright infringement -- when done for 
    information-gathering or indexing purposes. Although the court's decision 
    provides important guidance about fair use and photos on the Internet, it 
    does not mean that all thumbnail images are legal. In this article, a 
    former attorney for Penthouse magazine discusses the history of illegal 
    photo copying on the Internet and the significance of this case for 
    understanding online copyright infringement and fair use.
             See "Photos and Fair Use Online: From Penthouse Pets to Kelly's 
    Thumbnails," http://www.gigalaw.com/articles/2002/baroni-2002-03.html
    Doug Isenberg, Esq.
    Editor & Publisher, GigaLaw.com
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