This blog has been accused of “stealing” by Mike Harding over at montaraventures.com, because a contributing editor “hotlinked” a picture on Harding’s site on this blog. The title of Harding’s piece is: Dvorak Steals Copyrighted Work. He further states that John had the “audacity to use my bandwidth in the commission of the theft.” Harding makes no argument in support of accusation of stealing and theft, so I’m sort of left in the dark.

I’m assuming he is under the impression that infringing copyright equals theft. That’s certainly what the copyright industry likes to call infringement. However, the argument that infringing and stealing are equivalent under the law is wrong. The United States Supreme Court said exactly that in Dowling v. United States, 473 U.S. 207 (1985).

The Court determined that “the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple goods, wares, or merchandise, for the copyright holder’s dominion is subjected to precisely defined limits. It follows that interference with copyright does not easily equate with theft, conversion, or fraud.”

And here is the Court’s money-shot: “The infringer (of copyright) invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.”

So if Harding’s support for theft arises out of copyright, he is dead wrong.

Jordan Golson over at Valleywag.com chimed in too, but he does not accuse John of any theft. He does say that the image was used “without permission” and that the act of hotlinking constituted a “copyright violation.”

So with the issue of theft out of the way, let’s move to the issue of whether hotlinking constitutes infringement. Golson’s support for his argument is that “some lawyers say” it is. Well, as a lawyer myself, that doesn’t really mean much. Some lawyers I know say any number of things that aren’t true, as merely saying something in no way makes it true. This attempt at “argument” is called an appeal to authority. It’s universally considered an invalid argument for a very good reason; it’s nonsense.

Now I have no doubt that if I downloaded a copyrighted image from a server without permission and placed it on my server (or printed it out, or emailed it, etc…) it’s a copyright infringement. But that’s not what hotlinking is about. A hotlink is nothing more than a link to data on a different server.

In case Harding and Golson hadn’t noticed, the interwebitubes constitute a web. That means each page is linked to other pages, which are linked to other pages, which are linked to even more pages, which all together make up the web.

So let’s assume that instead of hotlinking, the contributing editor used a simple link directly to the picture. Can someone explain the difference? In both situations links were provided to the host’s server and readers of John’s blog could have the picture downloaded, stored in the browser’s cache, and made to appear on their monitor, without any prior permission from Harding. Sure the hotlinked picture would have been seen more, because the hotlinked picture is loaded automatically while some readers might chose not to click the link. But that is a matter of degree not of nature. Harding and Golson might argue that hotlinking makes it easer for the user to view the copyrighted material without prior permission. But once again, that is a matter of degree not of nature. Thus, hotlinking and direct linking are by nature the same thing.

So let’s look at an analogy. Let’s assume I live right next door to Tom Petty. He’s putting on an outdoors concert at his house and will be playing his copyrighted music. I have some people at my house so I give them directions to Tom’s house to hear the music. Is that infringement? I don’t possibly see how. Similarly, I don’t see how a direct link is infringement.

Now instead of giving directions on how to get next door, I simply open up my window to let those in my house hear it from Tom’s house. There is no copy of any material being made by me. There is only a direct line from Tom’s house to mine through which his copyrighted music flows. Is that infringement? There is no statute or caselaw forcing homeowners next to auditoriums to pay such copyright fees. Therefore, there simply is no such infringement. Similarly, I don’t see how hotlinking is infringement.

But wait, it gets better. In that hypothetical above the music actually flowed through my house to get to my guests’ ears. However, with hotlinking, the data never flows through the hotlinking server. It goes directly to my guests’ computers and the hotlinking server is never involved, other than to store the link. Which is the exact same thing that happens with direct links.

But maybe I’m wrong. Maybe, even though no copy is being made by the hotlinker and even though no data from the copyright holder is flowing through the hotlinker’s server, maybe it should be considered infringement anyway. In the US, when people feel bad about something, the first thing they want to do is file a lawsuit. So let’s assume that hotlinking does infringe copyright and Harding and Golson are free to file lawsuits from sea to shining sea. However, the problem, as I’ve already shown, is that there is no real difference between hotlinking and direct linking.

Accordingly, I hope bloggers such as Harding and Golson see the dark side of what they are supporting. What bloggers do is link to copyrighted materials found throughout the web, condense some of the materials down, and then comment on them. If that is infringement, the entire blogsphere is dead in the water. But it gets worse, because every single site that offers links to other sites, without prior permission, is also dead in the water. Goodbye Google.

If linking without prior permission is infringement then the web is dead. So we are faced with a choice: Do we kill the web, as the copyright industry would love to do, or do we create some sort of fair use for copyrighted materials on the web? Given the choice, I’m in full support of the latter. And I’m guessing, that given the choice, both Harding and Golson would strongly agree.

Here’s a possible solution: If a copyright holder intentionally places his or her copyrighted material on the web without any access restrictions, it’s fair game to link to it. If you make your material available to the public, you simply cannot complain when the public shows up to use the material.

There are plenty of sites that block direct linking to pictures. By blocking they are giving notice to the world that the copyright holder only wants the pictures viewed in a particular context. Harding and Golson apparently would want such blocking respected.

However, Harding and Golson should be worried of such a course. Because if copyright holders can block direct links to images, then they can block direct links to everything. Once there is precedent that some links without permission are illegal, then it only follows that all links without permission are illegal. The copyright industry would love that because, right now, the internet is out of their control. If it’s a tightly controlled internet Harding and Golson want, I hope they enjoy their blogging now while they can, because it certainly is going to make their blogging much more difficult in the future. This won’t kill the web, but it will certainly block off large portions of it.

Thus it is clear to me (and I hope it is clear to everyone else who uses the web on a regular basis) that the best solution to this alleged problem is to do nothing at all. Treat the internet as a web and let all materials on it be linked at will. If you have a problem with that, get off the web. No one is forcing you to be on it.

Some readers will point out that the contributing editor may have stolen bandwidth by linking to the picture. However, because Harding did not accuse him of theft in that regard, there really is no point in responding directly to it. I’ll just say that all of the arguments expressed above about theft and infringement of hotlinking could certainly be applied to so-called bandwidth theft. And further, if you don’t want people using your bandwidth, stop placing interesting materials on your webserver. Problem solved. (Wasn’t that what Geocities was all about? An entire server filled with materials no one wanted to see.)

Update: I noticed that Harding is now saying that “the issue is the appropriation of the image without attribution.” However, both hotlinks and direct links can appropriate an image without attribution. Here’s a hotlink without attribution:

And here is a direct link without attribution. Thus, Harding is back to destroying the very essence of the web.

And I should point out that, like footnotes, browsers have a built-in method for citing attribution. The url. If you want to know the site url for a picture, right click on it in Firefox and chose Copy Image Location. There, you have the cite and you know where the picture came from. Now wasn’t that a heck of a lot easier than following a footnote to the back of a book?

Last Update: Harding has posted a response to this here. Because the comments (were) closed, I wanted to give him a chance to have his opinions heard over at this blog.



  1. DeLeMa says:

    Ok, lemme see if I got all these issues down..
    It’s all about the Benjamin’s ?!?

  2. GF says:

    Well, yes. If you don’t know how to redirect a hotlink maybe you shouldn’t be running a web site. You do lock your doors at home don’t you? Do you keep your doors wide open? How about your car? Does that make sense to you now, webmaster?

  3. Sean H says:

    Well, yes. If you don’t know how to redirect a hotlink maybe you shouldn’t be running a web site. You do lock your doors at home don’t you? Do you keep your doors wide open? How about your car? Does that make sense to you now, webmaster?

    No, it doesn’t make sense. You’re saying if I don’t lock my door, and someone steals my stuff, I’m the one at fault. That’s idiotic.

  4. shovel says:

    Hotlinking of a proprietary work, without attributing the source (even after the source politely asked you to) is at best dishonest and at worst theft in my opinion.

    Also hotlinking is stupid as the source can then change the item you are linking to anything you like, potentially making the linker look quite stupid.

  5. bobbo says:

    What about lost revenue from hits?

    I don’t see how the web would be dead if folks weren’t allowed to link to copyrighted material or simply hotlink to anything else? It would be an impediment and the web would grow as it was bent.

    Is the web dead because some sites make you register to access their material, or is it only bent and growing?

  6. LBalsam says:

    The problem is not the link. It is embedding the picture on your page with no attribution.

    What if a web site puts in a hotlink to the upcoming forecast for a specific area on weather.com. The website is now providing a customized local forecast paid for for by weather.com. Weather.com gets to pay for creation of the forecast and the bandwidth, and they receive no advertising revenue in return.

    If you want to use an image, why not just ask? Chances are the copyright holder would be delighted to oblige if you provide and link and a credit.

    Traffic from your site could easily flood a small site generating extra bandwidth bills or exceeding the monthly bandwidth allowance and causing the site to go off line for the rest of the month.

    The copyright holder should have the opportunity to decline the flood of traffic.

  7. ethanol says:

    Wow, people are really clueless. How long have you people been using the web, 2 weeks or less? Any picture posted on the web that is not secured in some fashion, is completely available for hotlinking. I see absolutely no problem with hotlinking at all. If you don’t want someone else to use your posted image without attribution, put a copyright notice in the corner and watermark it!

  8. Uncle Dave says:

    Sean: “No, it doesn’t make sense. You’re saying if I don’t lock my door, and someone steals my stuff, I’m the one at fault. That’s idiotic.”

    Try leaving your car doors unlocked in a mall shopping center with an iPod, video camera, computer, and other expensive stuff laying out on the seat. See if you insurance company agrees with you on your proposition.

    BTW, just to make sure you understand, a vast majority of the images we hotlink to aren’t ‘owned’ or created by the person whose website is hosting it. It is a picture they didn’t take, don’t have the copyright on and rarely, if ever, is accompanied by an attribution. Quite often it is an image found on multiple sites. We just choose one. By your definition, we are hotlinking images that were stolen by others. Since this is an everyday thing we see, guess hotlinking, etc is a pretty standard practice, despite your protestations.

    2) #68: What exactly do you mean by attribution? While your example is a good one about an original image for which attribution seems reasonable as a courtesy perhaps, you have to realize that a vast majority of the images we hotlink to were not taken by the hoster, not copyrighted by them, etc. They found the image somewhere and have ‘stolen’ it for their use. I can’t imagine why I have ANY requirement or whatever to provide attribution to someone who is hosting a stolen image. Do you?

    Attribution to the original artist is one argument. Attribution to someone hosting is a completely different one.

    3) As John has said, if someone complains about an image, we change it.

  9. Uncle Dave says:

    #73: You, as an originator of art, have the only voice I’m willing to listen to. If you created something and want attribution, you’ve got it. If you don’t want something hotlinked, you’ve got it. It’s your image. You own it. But if someone who hotlinks your image or copies it and hosts it on their server complains about their bandwidth usage because I hotlinked it from them like Harding is doing?

  10. Bryan Price says:

    I think Mr. Harding has it nailed when he says

    Hotlinking is annoying, not illegal. We agree.

    And in so doing, I think that he doesn’t get it. If you don’t want people hotlinking, there are options out there that are not hard at all to implement to make sure that they don’t.

    That said, instead of a polite note via email about at least giving an attribution, and possibly putting it on Dvorak’s own server, we get a public screed about it. And then the flame wars begin.

    I’m rather reminded of how Fake Steve Jobs keeps baiting Scoble, but Scoble never takes the bait. Scoble has been at the Internet long enough to know when to start a war and when not to. Mr. Harding hasn’t learned that yet evidently.

  11. Brons says:

    Just because I’m a curmudgeon of long standing, let me respond to the notion that the notion that the only reason the folks here are objecting to the supposedly universally acknowleged unwritten rules that even though it may be legal, and more legal than copying the image to your own site hotlinking is evil, rude and not done.

    First, I’ve been on the Internet since 1974, when it was the ARPA net, routers were called IMPs and had open modem connections without passwords and most systems had guests accounts. Second, I was introduced to the web when a colleague at DEC about a dozen years later showed me this cool hypertext thing some clever guy at CERN had just come up with that you could get to over the in-house net because of the close working relationship CERN and DEC had. Third, I’ve had web pages on the public Internet for more than a dozen years and don’t recall having ever hotlinked an image.

    All that being said, I think the whole “hotlinking is rude evil theft” claim is bunch of whiny nonsense and the folks whining about it here should actually read the base article, think about the reasoning laid out and stop citing “what everyone knows”, ’cause everyone doesn’t know it, everyone could be wrong, and throwing around emotionally laden terms like “stealing” in the face of “legalese” that demonstrates the contrary is pretty poor substitute for actual thought.

    So there’s an opinion from a cranky old nerd with no vested interest.

    Just vainly hoping people could actually think and discuss rather than flame.

    Brons

  12. Ks says:

    #74
    I’d most likely just laugh it off. I put stuff out on the internet to see what people think of it, for them to enjoy, etc. This is the question I’ve got. You don’t want people hotlinking to your content. You want attribution. Are they supposed to download it, upload it to their own server, write “Stolen from *.com” And that makes everything alright?

    Many people are using the creative commons license, the one I use most often is this:
    nc/nd

    nc
    Noncommercial

    The licensor permits others to copy, distribute, display, and perform the work. In return, licensees may not use the work for commercial purposes — unless they get the licensor’s permission.

    nd
    No Derivative Works

    The licensor permits others to copy, distribute, display and perform only unaltered copies of the work — not derivative works based on it.

    You can add the by licensing, which demands attribution every time. Will you get it? Who knows, I don’t even bother. At least if someone hotlinks to one of your images the person clicking on it will know where it came from.

    It could be argued that the image hotlinked was used for commercial use as the site is ad supported, but I don’t really see it that way as the site’s more of a public forum. Others may see it differently.

    As for blatant bandwidth thievery, it sucks! It sucks when someone finds a rare mp3 on your site and streams it on blogger 1000 times in a single week. If it becomes a problem, like it did for me, secure it. Everyone should secure their data if they want to have complete control over their content. Should it be the fault of the content owner if some random is going about and jacking your things? Is it a person’s fault if they leave their purse in their car and forget to lock it? If something is valuable, lock it up. People are thieves. That’s just the way it is, and no it doesn’t mean it’s right, but it is life.

  13. shovel says:

    # 70 ethanol – When Harding _did_ update the hotlinked imageso it contained a reference to his site the admins here took a copy of the image, removed the attribution, stopped hotlinking and used the no-attribution version instead.

    I think most of the complaint was about the way it was handled by the admins here to be honest. Not the ‘hotlinking is the devil’ “no it isn’t” debate that has ensued.

  14. Thomas says:

    #60
    Your “unwritten” rules are nothing of the sort. Just because one geek suggests a list of guidelines does not make them universal. The entire web is founded on the *free* exchange of information through linking to content. Showing the linked content is simply a natural extension of browser technology. Of course, nothing is totally free (first rule of economics). The person that posted the information must take the time to do so and the person consuming the information must take the time to find it. However, this “sacrifice” is one of the founding concepts of the web. If you have content that you do not want to share, then secure it or remove it from the web.

    > The IP doesn’t pay my hosting bills.
    > The IP also makes many security attacks
    > possible. That doesn’t make it right to
    > attack someone.

    Actually, IP is paying your bills. When you post content for which you get paid or get paid to create content by a third party, that “IP” is paying your hosting bills. That does not mean it was *meant* to pay them. That means you have devised a means by which you *can* get paid.

    There is no “attack” here and to claim as such is ridiculous. DU is using the web as it was designed. You are upset because it ruins your little scheme to make money on the web. If you post content to the web, *expect* that it can be hotlinked.

  15. MikeN says:

    After reading SeanH’s comments, I retract my post #1. You are right to go into legalese given his attitude, which was presumably expressed on his site beforehand.

    I still think you are at fault, given the context of your site. What bothers me is the theft of creativity without attribution. I assumed you had come up with that picture yourselves, and now I am left to wonder about some of the other pics you put up to accompany your posts. The other pictures he hotlinked don’t strike me as relevant, as they are just regular pictures.

  16. Thomas says:

    #80
    A. There is no copyright infringement unless he can prove he owns the copyright. If I buy a book at Borders and resell it, Borders cannot claim copyright infringement.

    B. There is no “theft” in that nothing was taken from the site that was not freely provided. If someone puts out a bag of candy for all to have, you cannot claim theft when someone takes a piece nor can you claim theft if I mention to someone else where the bag is located without mentioning who put out the bag.

    C. There was no “theft of creativity” unless we establish that he actually created the image in the first place.

    If I create a portal site with images I found from scouring the web and someone hotlinks to those images, I cannot claim “theft” of anything.

  17. Jennifer Emick says:

    I think hotlinking can be theft, depending on how it’s done- but it’s a bandwidth issue, not copyright. If someone hotlinks an image from my site when blogging about one of my articles, i’m not going to care, really. But if someone’s using my images/bandwidth to illustrate their own work without credit or attribution, that’s just not right.

    I think the right thing to do would be to reprimand whoever did it and stop defending it. It may be a mild infraction, but it was still a discourteous thing to do.

  18. Gregory says:

    So to sum up

    – Hotlinking is rude, but not illegal.
    – Hotlinking uses a sites bandwidth without providing any benefit to that site.
    – Hotlinking is pretty lazy
    – Hosting, and then distributing, someones creative work is copyright infringment. Hotlinking avoids this hurdle, but adds others.
    – Hotlinking is easily stopped on the server side
    – Hotlinking is awful for your site in terms of consistancy and quality control.

    All in all I’m happy for people to hotlink, the people that take liberties with this must also be happy with the fact that I can change the image to anything I want. Be that a giant set of rainbow penises, or as suggested earlier, horse porn.

  19. MikeN says:

    #81, this strikes me as plagiarism.

  20. Mister Catshit says:

    SN,

    Very well written introduction and comments. A tip of the hat.

    #81, Thomas,

    I like your analogy about the candy.

    ***

    I consider the “web” as akin to a public beach. Anyone can get there for the price of bus fare or parking. Look at whatever other people are there. It doesn’t matter what their suit costs, looking is free. Staring or overt oogling may be rude, but they are not illegal. If someone objects to you, or anyone for that matter, admiring their revealing bathing suit then it their prerogative to cover up or else leave the beach. Heck, they could even hang a blanket or towel between you and them.

  21. Sean H says:

    After reading SeanH’s comments, I retract my post #1. You are right to go into legalese given his attitude, which was presumably expressed on his site beforehand.

    As previously stated, it’s not my website. I have nothing to do with it. I’m simply playing devil’s advocate in the debate.

    There is no “attack” here and to claim as such is ridiculous.

    I never said DU was attacking anyone. Someone else said that the internet protocol makes hotlinking possible, so it’s ok to hotlink. I pointed out that IP (Well, HTTP really) makes attacks possible too, but it doesn’t mean it’s right to attack people.

    If you’re going to quote me, you should follow the whole conversation so you don’t look foolish.

  22. Thomas says:

    #86

    From Response #60

    The IP doesn’t pay my hosting bills. The IP also makes many security attacks possible. That doesn’t make it right to attack someone.

    It is you that made the claim that someone is being “attacked” and I merely responded that any such claim is ridiculous.

    From Response #86

    I never said DU was attacking anyone. Someone
    else said that the internet protocol makes
    hotlinking possible, so it’s ok to hotlink. I
    pointed out that IP (Well, HTTP really) makes
    attacks possible too, but it doesn’t mean it’s
    right to attack people.

    It is illogical to compare the use of the web as it was designed with the exploitation of the http protocol for nefarious purposes. The former utilizes a fundamental design principle of the web whereas the later relates to attempts to pervert those design principles to seize control of a person’s machine or glean privileged information. One is using the web as it was intended whereas the other is not.

  23. Dave says:

    It’s only barely been mentioned but one of the biggest potential issues with hotlinking is plagiarism. It’s rare for a hotlinked image to be credited properly to the originator.

    The biggest issue of them all, as far as I’m concerned, is quality control. It worries me that the company that I work for has editors inserting YouTube videos directly into articles. Besides the problems with allowing them to write HTML on their own, (which is nearly always invalid…) we have no control over what YouTube do with the file we have embedded. Sometimes the file is the subject of a DMCA takedown notice (Ironically, often issued by our parent company who own the copyright !) and we end up with a “Sorry, this video is no longer available.” message instead of the video we originally embedded. Embedding javascript ads from a third party company worries me just as much, if not more. Youtube and our ad suppliers are reasonably reliable but imagine what the angry young blogger who already “stole” the images from the actual content creator could do to your site with a quick rewrite rule and an offensive image.

    I’m firmly of the opinion that hotlinking is not a copyright violation (and definitely not “stealing”) and I’m not sure about serving up your own copy of the image either. Proxy servers cache copies, Google caches copies, your own computer caches a copy. Why would it be a violation for a website to cache a copy ? Until the courts decide the issue of making perfect, or even imperfect, digital copies of copyrighted materials, even the lawyers are just full of hot air.

  24. nobody_reading says:

    why couldn’t your first sentence be “sorry”? even if followed by “you big fat baby”?

    I won’t pretend to have read every comment, the posts are quite a bit old now. I just wanted to jog in a little opinion from “nobody” who doesn’t know much about nothing.

    What offends me is this: the hotlinked image was “stealing” or “appropriating” or “borrowing” or “what-the-H-ever” the bandwidth from another server. I don’t think the inclusion of an image online is necessarily free-reign for use. I don’t think anything you can say would excuse the contributing-editor’s misuse of another’s bandwidth. “ouch, sorry” would have sufficed.

    Your rambling about “cache” is only relevant if the target audience of the article were readers who were linking over from the original site where the image was hosted. Thus, the image would have already been in the cache.. right? Or possibly I missed your point. sounded a bit deep in it.

    I do appreciate the whole legalese premise of your ‘rebuttal’, makes for quite interesting defensive posting.

    Further note: As far as I’m concerned, the hotlinking was ‘uncalled-for’. The response may not have been polite, but afterall.. what if professional bloggers just hotlinked each other’s images all day long? of course, you would probably note they do when they include little buttons to visit their friend’s sites.

  25. Sean P. Aune says:

    It is called “theft of services”. When someone pays for a service (hosting) and someone uses your service without your permission, it is called theft of services. It is why it is illegal to put your trash in a businesses dumpster and the police will find you and ticket you if you do it. Hotlinking is no different.

  26. M says:

    people who are paranoid about their pictures being “stolen” and switching them for horse porn or annoying images which accuse you of bandwidth theft are the reason that every time I think I’ve found just the image I’m looking for on google images, I want to shoot someone in the face.

  27. drone says:

    Firstly, you are wrong to equate an img tag with a “link”. Calling it “hot linking” is muddying the water. A “link” is a shortened term for a “hyperlink”, which is a specific HTML reference that takes the user to _somewhere else_. Your use of the image tag is NOT surrounded by a hyperlink, so it does not “link” the user anywhere else, it just shows someone’s content inline with your content, as would appear to the average user as if the content were your own.

    You did NOT attribute the content clearly, and saying “well, you could read the source code, find the reference to a different site, and then go digging around there” is a non-starter, and a weak defense. I might as well include an inline frame, or use javascript to inline all of your text blog posts, and have them appear on my blog without attribution. Would you feel the same then? I’d use the same defense you’re using against you.

    !c

  28. This is the stupidest most specious “argument” I’ve ever read. No way you could be a lawyer. Let me guess; you didn’t pass the bar. And most of the comments here are so dumb I’m not going to even read them.

    Without an image that someone ELSE made or invented or took, you and every other blogger are up sh!t creek, aren’t you? What would the net be without images? But the DMCA has rules about copyright, which you SAY you know, but you don’t quote it. Under those rules, no image can be copied or used, none, unless it’s fair use, and you’ll have to look up that, too – it always involves a review of some kind.

    As for confusing copyright with hotlinking, how idiotic are you? One is stealing intellectual copyright, one is stealing bandwidth. Are you so ignorant that you don’t know that images take up bandwidth? IT HAS NOTHING TO DO WITH LINKS OR LINKING!!!!

  29. AntiSocial says:

    @ #94
    you’re right it’s theft.
    If i throw away food in the bin i poison it so that the bums who get it out and eat it get sick of it and hopefully die (antiHotEatFeature). It’s my crap not theirs!

    Seems a little AntiSocial, but hey, it’s my right!

    Even though bandwith is cheap today…


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