I just read a headline that Germany's high court has ruled that deep-linking is
legal under German copyright law. The only articles I found were in German
however. Can anybody confirm this?
> The law, however, is generally not mechanistic; uncertainty is a better
> outcome than injustice. In the case of inline linking, a mechanistic
> construction can give rise to a result which is (arguably) inequitable.
Governement caused uncertainty IS injustice in the area of licencing and contracts. The only just role for a government to play is to establish clear rules whereby two parties can expect to have a common understanding.
I see nothing even arguably inequitable in having the law allow the web server of a copyright owner to be used in the way that owner configured it to be used. Nothing forces a copyright owner to use HTTP to distribute their works. If someone is too stupid to understand that setting up a machine to send copies of your works to people who request them is something that requires care, then I have no sympathy for you.
On the other hand, I see tremendous inequity in throwing out a very good working standard relied on by millions in order to allow Kelly to avoid having to read his web server documentation.
> I am not an expert on US law (nor for that matter on UK law) but I believe
> that there is a trend towards the use of purposive construction. There is a
> principle in tax law, for example, which says that if there is a whole
> series of transactions, each of them lawful, but having no separate
> commercial purpose other than to reduce tax liability, they are ignored for
> the purposes of tax calculation.
And why do you suppose that this had to be legislated if the mechanistic approach is not the default for analysis? Where is the black letter law that says the default deep-linking mechanism? We are not talking about rules that constrain what Congress can do, but rules that should guide judges when Congress has said nothing.
> [...] If the purpose of inline linking is
> misrepresentation leading to economic gain at the expense of another, then
> there is a mischief and the law should correct it. If that requires a
> purposive construction then so be it, although of course legislative
> clarity would be much better.
What exactly does an inline link "misrepresent"? It displays a picture, whose link can be copied to the clipboard, whereby it is represented as coming from the copyright owner's web site.
> > I disagree. They distiction is directly aimed at the heart of the
> > matter. When I copy your file to my own web server I deprive you of
> > control. Now if you decide to take content down, or that you only
> > want people who link from MSN to have access or whatever, I have
> > taken your right to authorize the use of your file away from you. When
> > I deep-link to you I have not taken your right to authorize away.
>
> I agree that there is a control issue which weighs in the opposite
> direction to my conclusion. I don't think it's the heart of the matter
> though, which is - to repeat myself - misrepresentation leading to
> economic gain at the expense of another.
See above -- if all I do is deep-link, what am I misrepresenting? You seem to be implying that an HTML page purports to link all of its images from its own domain. Where is that supposition written?
In Arriba's case they clearly labelled themselves as a "search engine". All they are representing is that the displayed picture, which matches the criteria you entered, is avialable via HTTP from a site somewhere on the internet. This representation would seem to be self-proving.
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