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. SN says:

    “Even when you’ve linked directly to the image hosted on someone else’s server, you’re still sending people to their domain.”

    The picture is on the exact same domain whether it is directly linked or hotlinked!

    “Did anyone at Dvorak contact the web site owner first, to see if their hosting plan can handle the extra bandwidth?”

    See my 2nd paragraph in 29.

    (I don’t mean to gang up on you with Dave, it’s just that his arguments are intertwined with mine!)

  2. allan says:

    SN,

    I am sorry you feel that way. Even if what you have done is technically legal it is probably immoral and certainly unethical.

    I have been subscribing to this site’s RSS for over a year but, if this is typical of the ethics of this site I think the time has come to drop that subscription.

    Allan

  3. Uncle Dave says:

    #30

    1) All they are seeing when they click on the link is the photo. They aren’t seeing anything else on the website. They look, then click back to the referring page. They never see the hosting website. You understand all that, right? So how is this a benefit to the guy’s website?

  4. Sean H says:

    The picture is on the exact same domain whether it is directly linked or hotlinked!

    It is on the same domain, but you’re not sending people to that domain. Hotlinkers aren’t sending people to my site by hotlinking.

    See my 2nd paragraph in 29.

    I understand that. I have a dedicated server with plenty of bandwidth to spare, plus Amazon S3 accounts that cost me next to nothing. It wouldn’t cost me anything if everyone on myspace hotlinked my images (but I’ll still replace them with horse porn).

    If you’re placing images on your own server, then you’ve agreed to be hotlinked. When you hotlink to someone without their permission, they’ve made no such agreements.

    What I really just don’t understand, is why? WordPress makes it plainly simple to upload images to the blog’s server. Why hotlink in the first place? Why take the chance of having the original image owner pull a switcharoo?

  5. rfk says:

    Cripes, I drop by and find a few people whining about how the Web works – while the DU crew tries to explain it to ’em.

    I’m glad I have a Hi-def DVR and don’t have to watch blogs all the time.

  6. Sean H says:

    1) All they are seeing when they click on the link is the photo. They aren’t seeing anything else on the website. They look, then click back to the referring page. They never see the hosting website. You understand all that, right? So how is this a benefit to the guy’s website?

    You missed this part, “I’ve followed many links of that nature in the past (we all have), and I’ve taken the extra step to check out the root of the site by removing the “someimage.jpg” part from the URL.”.

    I do follow the images back to the original site, because the URL appearing in the browser’s address bar does show where I am.

    Do you understand that the site’s URL appears in the address bar?

  7. BubbaRay says:

    Nice job, SN. Well explained. I’m not a lawyer, but try to keep up with this as you know. Hotlinking is not illegal — I haven’t found a single solitary law that says it is.

    As far as taking someone’s picture out of context, how about this? I visit a museum. An artist has paid to display 30 works in a public gallery. I bypass all the blurbs, business cards and the artist at the entry and walk straight to a picture someone has told me I might be interested in. I look at the picture and walk out, having enjoyed that single picture. Can the artist gripe at me for not spending equal time on the rest of his uninteresting (to me) works? Have I stolen anything? I don’t think so.

    If the artist didn’t want to pay to display his works to the public, he didn’t have to.

    Just my 2 cents (3 new gold dollars) worth.

  8. Sean H says:

    Cripes, I drop by and find a few people whining about how the Web works – while the DU crew tries to explain it to ‘em.

    I know exactly how the web works, and I make a very comfortable living at it.

    I’m trying to explain Internet culture to the Dvorak crew, and how hotlinking is considered rude.

  9. god says:

    #35 – b

    Because – technically – and that seems to be a certain portion of your hangup, hosting a copy of someone else’s image is closer to illicit than is hotlinking.

    Though, there is a subsection to that whole argument which allows for hosting modified copies of an image. Which is what Harding is doing, of course, with an image of a VISA card.

  10. Sean H says:

    P.S. I pointed this out more than a year ago:
    http://www.480x.com/?p=421

  11. hhopper says:

    I’m trying to explain Internet culture to the Dvorak crew, and how hotlinking is considered rude.

    Maybe a few years ago when site hosting was expensive, but today HDD storage and bandwidth are cheap.

  12. Uncle Dave says:

    #33: Why is it immoral or unethical? It isn’t so just because you don’t like it for some reason. Where are the rules of the web stating this that you are required to follow? Someone posting how they want things to be is their opinion only.

    I guess I just was taught not to impose my will on others just because I don’t like something. You, apparently, prefer an authoritarian approach. No laws or rules or whatever exist regarding all of this, yet you would seek to impose ones because you don’t like it. Tough.

  13. rfk says:

    Dude, you’re explaining your version of what you wish Internet culture was. Who elected you arbiter?

    I’ve been online for 24 years and still ignore anyone who tells me there’s an Old Cyber-Testament that governs what I have to think or say online.

  14. Uncle Dave says:

    #37: YOU may look at it, but the average reader doesn’t. In fact, he couldn’t care less where it’s from or where it’s posted.

  15. Sean H says:

    #43
    I’m not imposing anything on anyone, because it’s not just me. If you do some Google searches on “hotlinking”, you’ll find the Internet community as a whole considers it rude.

    When you openly hotlink, you are openly being rude. You are thumbing your nose at people, and telling them to fuck off.

    Like I said before, if you don’t understand that it’s considered rude, then you must have just discovered the Internet.

    Welcome to Eternal September.

  16. Sean H says:

    YOU may look at it, but the average reader doesn’t. In fact, he couldn’t care less where it’s from or where it’s posted.

    We’re not talking about readers. We’re talking about “web masters” (kind of a corny word these days).

  17. Uncle Dave says:

    I’m tired. The final Journeyman is on tonight (it hasn’t been canceled, but it also hasn’t been renewed) and I’m planning on watching it on my DVR so I can steal the program by skipping past the ads for products I have no intention of buying anyway.

  18. Sean H says:

    I’ve been online for 24 years and still ignore anyone who tells me there’s an Old Cyber-Testament that governs what I have to think or say online.

    I’ve been around just as long (Start off running a BBS), and that’s why I know better.

    There are plenty of unwritten rules that govern real society too. I suppose you ignore all of those too?

  19. ChrisMac says:

    aaahhhh.. flame wars

    who’s trying to relive their childhood tonight?

  20. Uncle Dave says:

    Crap. You posted before I could turn my computer off.

    #46: Well, it obviously isn’t universally accepted since even a few others who have posted tonight disagree with you.

    FYI, my first exposure to anything web related was Usenet about 1991. Shortly afterwards, my then boss, Doug Kaye (an occasional TWiT), demonstrated it on a new fangled thing called a browser.

    #47: Au contraire, you were talking earlier about if a person clicked on a link the person would see your webpage thus benefiting you where as hotlinking does not. Suddenly you are now talking about “web masters.” I guess I missed where you made the switch.

    BTW, I prefer the web to be the way it was back in the beginning: without rules imposed by people who want to control it for their own ends.

    That’s it for tonight.

  21. joe says:

    Harding could have done what any first year porn operator does. watermark his image. second, it was on a public blog, the image was in no way privatized or restricted.

    This sounds like to brat going at it on the school yard over who got the coolest toy for xmas.
    everyone needs to grow up and get a dam life.

  22. Glenn E. says:

    I remember a few years back when the RIAA wanted to kill Napster. They weren’t suing individuals downloading music, back then. Perhaps they didn’t think they could find them all. So they demonized Napster as “the driver of the getaway car”. We haven’t heard that defination since they started suing teens and mothers with illegal music files. But my point in mentioning it is this. Hotlinking is only possible because the HTML code and the various Browsers that support it, perform this function by default. Without any checks to see if the source is forbidding it. It’s the browsers that “steal” or infringe, via the HTML code that was universally established. Don’t blame the receivers (you) or the pointers (hotlinkers). Shoot [at] the messengers.

    Hotlinking can be blocked, I’ve seen it done often enough. But apparently it’s not easily done in HTML3 code. That wasn’t written with the idea of protecting any copyrights. Perhaps it should. Perhaps the code and the browsers should be changed to make it easier to lockout hotlinks. But only for those websites that really want to. Otherwise, such a significant change in the way browsers work, at this late stage, would severely disrupt how millions of already written and established web pages would work.

    BTW, course the cry-babies don’t want to blame the browser makers. They can’t sue Microsoft and win. And Open Source browsers have too many writters to target a suit against. Besides, people will just continue to use the older version of their favorite browser, that does all the hotlinking they want it too. So it’s a lossing battle, at best, to sue for browsers to change the way they operate. So they rights holders have to blame whoever makes a hotlink to their wide-open website’s content. But that doesn’t mean that they’re right.

  23. Thomas says:

    Sean H:

    Your “analogies” are not even close to relevant.An analogy that is more relevent would be if I posted a list of home addresses somewhere public which included your house and people started visiting your house; just to see what is happening. They do not know who you are or what you have in your house. Instead, they are taking up space on your street! They are bombarding your house with photons! The argument is equally specious. If you make something public, you cannot be upset when the public take interest in it.

    Images and text are simply two different forms of content for which Internet protocols make absolutely no differentiation. Behind the scenes, all that you are doing by “hotlinking” is telling your browser that there is an interesting image at some address. It is the browser that takes the next step and kindly shows you the image at that address. You can do that with any sort of content. Why not blame the browsers for showing images from domains other than the one you are viewing?

  24. joe says:

    oh yeah, wasn’t issue settled in Google vs perfect 10?

  25. Why don’t you go over to a HUGE traffic website..the Huffington Post…they use all sorts of deep linked images. A good place to complain.

    As for ruining little websites by deep linking our policy is actually not to do that. That said people can prevent deep linking with code. And if they are really worried they can post their pics on Photobucket or Flickr and not lose a penny by deep linkers. If I have a large image that I know people will pound I always host it offsite. All the blogging systems host pics, as well as hundreds of other sites which host for free. So this complaining about “stealing bandwidth” is bullshit. Besides most people pay a flat fee anyway.

    Links are links. You are either for them or against them. Some of you sound like you should be working for the RIAA with your arguments.

  26. Glenn E. says:

    ‘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.’

    I just want to say something that a little off topic here. You needn’t respond to it. The above reminds me of this whole “Global Warming it a fact because 2000 scientists concent to it’s validity.” argument. It hasn’t actually be proven or demonstrated. But a bunch of educated types (not always from the field of climate sciences, btw) are onboard with it. Sounds more like a “religion” to me. Ok, back on topic.

  27. Gary, the dangerous infidel says:

    You’re welcome to hide behind the legal definition of infringement all you want, and the legally protected bytes may not actually be found residing on the server of the webmaster who “borrows” the graphic. Yet the nature of what has happened is that the graphic’s owner receives no benefit in exchange for serving up his graphic, while the webmaster who “borrowed” the graphic receives all of the benefits without any cost.

    I think a fairly ethical compromise that takes into account the interests of both parties would be to make your hot-linked (embedded) graphics also serve as direct links to the original web site where you saw the graphic, as Sean also proposed earlier in this thread, just like with YouTube embedded videos. This is much better than the sparse information provided by the browser for “image source” that often makes no connection to the page where the graphic appeared in context.

    This subject is raised because of the use here at D.U. of Mike Harding’s original “FISA” parody graphic. The graphic itself should have served as a clickable direct link to Mike’s site, and if possible, to the specific page where you saw the graphic. In that way, a dual hot-link/direct-link serves your original purpose just as much, and yet it also helps drive traffic to Mike Harding’s site. That would seem to be the best way to compensate anyone whose graphic and bandwidth you “borrow,” and it requires only a tiny bit of extra effort on your part. Why is it so difficult to see the other person’s point of view? Sheesh!

  28. GF says:

    Mike Harding is a moron. If he set up his server correctly he wouldn’t have this problem. Hotlinking should not be an issue for any competent Web Master/Admin. Beware the BOFH that might tag a little SPOS into the jpeg you download.

  29. Sean H says:

    Well, it obviously isn’t universally accepted since even a few others who have posted tonight disagree with you.

    Clearly Vallywag disagrees with you, by saying:

    “There are a number of unwritten rules to blogging. One of the more common — and more grievous — violations is “hotlinking.””

    Anyone who has been working on the web long enough knows this. The people here that disagree with me are doing so because they’re at fault. They’re on the defensive.

    As I’ve said before, there are plenty of unwritten rules that govern both physical society, and the Internet. They’re courtesies we extend to each other to keep everyone sane and happy.

    Your “analogies” are not even close to relevant.An analogy that is more relevent would be if I posted a list of home addresses somewhere public which included your house and

    My analogies had nothing to do with hotlinking. Read closer. I was refering to what SN was saying, which in effect was “If you make it easy to steal, then it’s ok to steal it.”

    which Internet protocols make absolutely no differentiation.

    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.

    Mike Harding is a moron. If he set up his server correctly he wouldn’t have this problem. Hotlinking should not be an issue for any competent Web Master/Admin.

    That argument seems to be echoed here a lot. You’re basically saying as web master, it’s my responsibility to keep you from steeling from me. That doesn’t make any sense.

  30. Sean H says:

    @SN – Listen, I understand where you’re coming from. If I was a bettin’ man, I’d say Tim Berners-Lee would have wholeheartedly endorsed hotlinking when he created the WWW. It’s all about the exchange and sharing of information, to create new information.

    I can also understand that hotlinking is mostly a moot issue these days, although someone’s bandwidth bill could still go through the roof if enough big sites hotlink an image. Hell, if Microsoft hotlinked a DU image, and put it right on their home page, you guys would be fucked.

    That being said, you’re not going to change the cultural perception of hotlinking by saying, “Prrf.. well the law says I can!” People are just going to dig in their heels and fight you even harder.


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