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.