Re: Kelly v. Arriba Soft (new opinion from 9thCir.)

From: Linda Gruber <linda[_at_]novelart.com>
Date: Mon, 25 Aug 2003 11:15:02 -0400

on 8/21/03 10:40 AM, CNI-COPYRIGHT -- Copyright & Intellectual Property at CNI-COPYRIGHT[_at_]cni.org wrote:

> Date: Wed, 20 Aug 2003 17:45:00 -0400
> Message-ID: <redirect-850549[_at_]cni.org>
> From: Keith Handley <kehandley89[_at_]alumni.amherst.edu>
> Subject: [CNI-(C)] Re: Kelly v. Arriba Soft (new opinion from 9thCir.)
>
> Robert F. Bodi wrote some time ago:

>> If you create a NEW page using the artwork of others by inline linking, you
>> ARE distributing a new page, in a manner of speaking.  Maybe YOU aren't
>> making the actual copy, but you are CAUSING the copy to be made on the
>> machines of others, which, in my opinion, is not allowed without permission
>> (implied or explicity).  The issue is whether such permission is implied.  I
>> say no.

>
> Quoting "Robert F. Bodi" <lawlists[_at_]bodi.com> recently:

>> Further, I agree that, arguably, there is an implied license to display the
>> image on a browser using HTTP and HTML.  However, there is no implied
>> license to use that image to display in other web pages.  In my mind, that
>> is an unauthorized derivative work, and thus would likely be an infringement
>> of copyright.

>
> I asked this before of Linda Gruber, who answered. I was really hoping that
> Bodi would answer, but, as far as I can tell, he didn't.
>
> Important digression: Linda did not really answer the question about the code
> in the email, only the website. I'd be interesting in hearing from her on
> that, too.

Hello Keith,

Sorry, I didn't see a question about code in email, but I'll guess that you are referring to pasting a deep link into an email. Personally, I don't appreciate online links to any page other than my index page unless I have given explicit permission. I deny search engine robots access to most of my inner pages via my robots.txt file. That way they can't index pages that would allow visitors to bypass my front door. That's because visitors to my index page must click the "I agree." button to enter. By doing so, they are obligated to look for my terms of use before attempting to download or use my content.

In contrast to deep links displayed online, however, I don't believe that directing someone to an inner page of my site via an email link is such a bad thing. Email is one to one, so the risk is not too great. It isn't a public invitation for all comers to enter via the back door such as occurs when search engines provide deep links. If your email recipient clicks on a deep link within the body of the email, my page will still be displayed via my web site where my terms appear at the bottom of each page. And even though s/he may have missed the click through agreement, if s/he attempts to right click on an image from my site, a pop-up appears stating that it is not permitted. So, I'm still asserting my copyright, just not as thoroughly.

As for emailing someone the URL of the derivative page that you constructed using my images and my bandwidth, I don't think that emailing the URL is an offense in itself. I contend that your page did infringe my exclusive right to make derivative use of my work and to control the display of my images. (I use past tense because your page doesn't infringe now, but that's only because I am preventing the display.)

> Now, as I go to check to see whether the web site is working, it
> turns out that Linda has done something to prevent the images from showing up
> in my browser, although I can still see them by going through her web front
> door. Perhaps she is looking at the "referring page" field and deciding not to
> send her images to you if her own page is not making the request. I ask you
> all, shouldn't she be relying on courts or cops or her congressman to prevent
> others from using her images, instead of using the instruction manual for her
> web server? I hope she didn't learn about this technology here, on this CNI
> list! If so, we should all be ashamed.

I am very grateful for the technical discussion on the list. It led me to check out my server's control panel which I hadn't done since a recent update. I was delighted to find that there was a hot links script that would allow me to prevent other sites from linking to my images. In the past, I had tried to implement such cgi scripts in my own bin, but they invariably didn't work or caused problems. My web host apparently approves this script with their particular server set-up, and it seems to work pretty well. (There's one minor problem, but I think I can live with it.)

Nevertheless, I don't think that copyright holders should be obliged to prevent others from direct linking. I was able to prevent my images from showing up on your infringing page only because I pay for a host that offers a control panel with this capability. Many content providers use free, community sites which don't allow web masters to implement scripts or even place a robots.txt file because they don't have access to the root level.

It is the user who is obligated to get the copyright holder's explicit permission before direct linking or downloading. It's not that difficult for an individual to ask an individual copyright holder. It is much more difficult for an individual copyright holder to constantly watch web site stats and stay abreast of the latest technology. (As if we didn't wear enough hats already!) It's bad enough that there is no enforcement other than the copyright holders themselves when it comes to catching the thousands of infringers who would use copyrighted files without permission. We shouldn't have to become techno wizards to assert our rights online.

Linda Gruber

Novel Art
http://www.novelart.com Received on Mon Aug 25 2003 - 19:15:02 GMT