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Nov. 12th, 2004 @ 07:50 pm (no subject)
Warning...

While I can find no legal documents that say link other people images from their own website is "copyright infringement", and I can find some saying it is not. Live journal is threatening to shut down people journals if someone files a DMCA complaint against the linker.

From markf of the LJ Abuse team, we have this:

Interesting link. It establishes that the use of images being retrieved by search engines is fair use. It doesn't establish a blanket "image tags cannot be copyright infringements", though.

http://www.copyright.gov/fls/fl102.html outlines the criteria considered for fair use.

Right now, unless it's absolutely blatant beyond any reasonable doubt, the Abuse Team doesn't make judgements on what is or isn't fair use. The DMCA basically requires that an online service provider remove the content in question upon receipt of a properly filled out copyright infringement notice or face any legal damages associated with it.

It's not documented as well as it should be (and I do plan on fixing that), anyone who's being asked to remove anything as a copyright infringement has the right to file DMCA counter-notification. This shifts all liabilty to the person filing counter-notification, meaning we're only going to require the person to take the image off of LJ for 14 days (again, DMCA requirement), after which they can put it back up if no lawsuit has been filed. The basic theory is that if the user wants to risk the lawsuit (which in most cases I'd agree they'd win easily), they're free to do so, but it's not wise for LiveJournal as a business to put itself at risk of lawsuits.

I do appreciate the links everyone's providing, and I am hoping there's some precedent out there that establishes this to the point we can reject quite a few more DMCA complaints than we currently do.


So becareful what you link. Or on the other hand, if you hate someone, file an assload of DMCA complaints against them.

Does someone want to explain to me how linking an image someone has posted publicly for the world tosee if copyright infringement? You aren't copying or distributing it. You are just posting a link to the owners own server they they have the copy and they distribute it themselves.
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From:believe_in_me
Date:November 13th, 2004 04:32 am (UTC)
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Maybe if you don't credit them??
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From:adameros
Date:November 13th, 2004 04:36 am (UTC)
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As far as I know, as long as you don't try to claim it's yours, it should not be an issue. But on the other hand it has been pointed out that even giving correct credit is not protection from being accused of infringement.
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From:believe_in_me
Date:November 13th, 2004 04:51 am (UTC)
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yeah I think its basically if people get fussy about their work you are screwed
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From:roses_rejoice
Date:November 13th, 2004 04:35 am (UTC)
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i haven't looked up the answer, this is off the top of my head. and the DMCA is a new law and still being "creatively" interpreted, but first of all, if you link an image, then copies of it are going to be created somewhere down the line most likely. for instance, in your computer cache, or in the caches of the computers of people who access the image via the page with your link. second of all the DMCA has provisions criminalizing "access" for purposes of copying, so your link falls under the "access" offense. a recent case (Chamberlain v. Skylink, garage door openers) held that access can't be a crime under DMCA if it's not for purposes of copying - in the Chamberlain case, the access was for purposes of getting a competing garage door opener to work with a manufacturer's copyrighted garage door code. it wasn't for purposes of stealing the protected garage door code, it was just a workaround, so access offense didn't apply. But when you hotlink you're like I said probably making a copy so the access provision would kick in.
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From:adameros
Date:November 13th, 2004 04:39 am (UTC)
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The DMCA specifically allows for transport of content (when it resides in the network/routers) and caching, such as web caches and browser caches (when you are looking at it on your computer).
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From:roses_rejoice
Date:November 13th, 2004 04:39 am (UTC)
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yes but not if you have unauthorized access.
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From:adameros
Date:November 13th, 2004 04:46 am (UTC)
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In this case I'm familiar with, the orignal person had posted the images publicly on their website. Another person linked them in their livejournal. The person complained to LiveJournal abuse for a DMCA violation and "theft of bandwidth", so LiveJournal told the person to remove the links or have their journal suspended.

"Theft of Bandwidth" is a fictional term. It's rude to og bandwidth, but not illegal. Especially if it was not with malicious intent (like a DoS attack).

So that leaves the DMCA charge. If someone post's an image publicly, and someone else links it, is the person doing the linking violating any copyright laws?
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From:roses_rejoice
Date:November 13th, 2004 04:51 am (UTC)
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I would say that the person doing the linking is probably violating the copyright law if the link is unauthorized UNLESS there is a fair use exception of some sort.

however, when LJ gets a complaint, they're going to react the same way eBay does when it gets an infringement complaint and just pull the alleged violator's account. the reason for this is because the safe harbor provisions in the various copyright laws for OSPs usually only kick in if the OSP has no reason to be aware that infringement is going on. OSPs will err on the safe side and not sit around trying to evaluate whether a link is unauthorized access, whether fair use applies, etc. OSP will just tell you, the little account holder, to cut it the hell out or good-bye, so OSP does not risk DOJ scrutiny and/or a lawsuit.
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From:adameros
Date:November 13th, 2004 04:59 am (UTC)
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I think it boils down to "what is copying?" If you point out a picture in a gallery window to people who pass by, are you copying that picture?

If you link something, you are not copying it. But you are allowing other's to copy it to their cache which is specifically allowed. There is still only one copy, as far as the law is concerned, and that's on ther originating server.

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From:roses_rejoice
Date:November 13th, 2004 05:04 am (UTC)
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I am falling asleep so I'm not going to read that text again right now, but doesn't the cache copying exception only apply to the OSP and then only if the OSP has no reason to think that infringment is going on? If I copy a whole bunch of protected shite to my home PC, and I get sued directly, me not being an OSP, the government will simply come and take my PC away and examine its cache for evidence. It is not OK for me to have that in my cache, and it was not OK for you to allow me to access it into my cache if you provided an unauthorized hotlink for me to get it.

However if the OSP did not have reason to know we were doing all this, and has stuff in their network pipelines that got there while I was doing my illegal downloading, then the OSP is off the hook.

However, if the OSP had good reason to know I was doing it (like they got a DMCA complaint in the mail), and they have that stuff there and they did not try to stop us, they are NOT off the hook.
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From:roses_rejoice
Date:November 13th, 2004 04:41 am (UTC)
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also, we have not even begun to scratch the surface of what specific situations the DMCA is going to allow and not allow content and caching under. not enough suits yet, and so many exceptions for fair use by universities and stuff that it's going to take a long time to get all this settled.
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From:adameros
Date:November 13th, 2004 04:50 am (UTC)
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If you go here: abuse_lj_abuse the three latest posts (one from elgorgo and two from jameth, the one threatened with suspension).
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From:roses_rejoice
Date:November 13th, 2004 04:52 am (UTC)
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see my comment above about LJ wanting to just avoid getting hit with a law suit. i frankly don't see why image providers would bother with a DMCA complaint though when they can fix the problem pretty damn quick by breaking the link or putting up a goats.ex photo - i've seen both done many a time on LJs
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From:adameros
Date:November 13th, 2004 05:01 am (UTC)
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Or restrict access based on the refering link. Lot's of options. The EFF has their opinions on it here:

http://www.eff.org/IP/Linking/19960317_eff_framing_statement.html

They call it "inlining" in their op-ed piece, but it's the same thing.
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From:roses_rejoice
Date:November 13th, 2004 05:07 am (UTC)
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thanks I'll read that in the morning. i am generally a pretty big fan of the EFF but I have lacked time lately to keep up with anything legal unless it's specifically for work. and also the copyright regulations have become such a beeyotch that I think we are all trying to ignore them. they're getting to be like the tax code, crazier and crazier.
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From:roses_rejoice
Date:November 13th, 2004 04:45 am (UTC)
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oh, and also i just quickly scanned the text and aren't the provisions you're referring to specific to the service provider only? in other words, it's providing the usual safe harbor for OSPs. seems like they could still sue anybody who isn't an OSP.