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Is Hotlinking a Copyright Violation?

My site has been informed of a copyright violation on pages where we hotlink images:

http://hiphop.popcrunch.com/kimora-lee-simmons-snags-doll-and-new-reality-show/

Kirsten Dunst Determined To Star In “Blondie” Biopic

Is hotlinking a violation of copyright and is it the publisher’s responsibility to deny access technologically, or the users responsibility to remove the hotlinked images if asked?

Author: ryancaldwell

20 thoughts on “Is Hotlinking a Copyright Violation?

  1. Raj: Though I agree with you in general, I can understand the frustration with image hotlinking. But yes, people have been sued, albeit unsuccessfully, for “deep linking” pages in the past. Wish I were kidding.

    Also, great link with some good reading.

    Markus: I agree completely. But then again, with so many file hosts these days, I don’t see why one would not just stick the file into their Photobucket, Flicr, Divshare or other account.

    Smperris: The best approach to be certain. Creative Commons is really a wealth of great content for this purpose.

    Jonathan Bailey – plagiarismtoday.com

  2. On the rare occasions my image use is in the “grey area”, I’ll copy and host the image on my own site and then use the href to link back to either the original site’s home page or the page the image was on.

    I figure it’s only fair to acknowledge where it came from. I generally use the Creative Commons search on Flickr for my images, but that’s not going to work for a celeb blog for example.

  3. > As TVLinks found out, hotlinking to copyrighted data can be a crime.

    It is getting complicated with a service like SnapShots which offers a great audio preview for MP3s. I offer a preview icon on my page and SnapShot offers the ability via layover pop-up to play audio and video.

    I suppose to be on the safe side you should not link (not hotlink) to the media files directly.

  4. Jon: I say that anyone who tries to sue you for linking to them is too stupid to be online. Go put up a billboard somewhere and stay off the Internet

  5. Raj: A good analogy. I wrote about about YouTube embedding a copyright a while back on the BH. Certainly that could apply here as well.

    Hoopadoo: The flaw with your analogies is that there are other factors which are more important to fair use than attribution. Yes it is considered and it is very hard to make a fair use case without it, but you have to weigh in how transformative the use is, the potential damage to the market for the original work, percent used, the percent that the reused portion made up of the original and more.

    As far as the wifi analogy goes, the problem with that is, with hotlinking, you’re using both the resources and the intellectual property. There are two elements with hotlinking.

    However, I still make it a point not to use wifi access points if uninvited. There are many reasons for that, not the least of which is security, but also that it could negatively impact my neighbors. Besides, at least one man has been arrested for using a wifi without permission so it is a crime at least in some places.

    Markus: As TVLinks found out, hotlinking to copyrighted data can be a crime. The site didn’t host any of the content, but merely provided links and that gave the government enough ammunition to target it for secondary copyright infringement under the inducement theory.

    The same would likely hold true for MP3s.

    Ahmed: The best approach is still not to steal at all. Obviously.

    Jonathan Bailey – plagiarismtoday.com

  6. as chris hogg said, it’s mainly a matter of credibility – if you’re going to steal, at least do it right by copying the image to your own server. It’s not that hard with WP, you know

  7. What about hotlinking (?) MP3 files?

    • Recently I discovered that tiny del.icio.us MP3 player script. I have no idea yet if the files are temporarily stored somewhere else.
    • The same question is valid for using SnapShots which also offers a great audio preview for MP3s.

    Additionally: What about copyright issues with MP3s only linked to?

  8. In regards to hotlinking as a copyright violation, this certainly opens the door to a “fair use” conversation.

    Fair use example:
    BoingBoing.net selects an image out of a collection of zany and goofy pictures on a site and uses it as the header image on their blog entry describing what this collection is all about, along with a link directing the reader to said collection. I would classify this as fair use. (Besides, who would complain about anything that brings you free traffic from BoingBoing?)

    Copyright violation example:
    Webmaster is putting together a site about the state of Georgia and finds a beautiful picture of Stone Mountain on a photographer’s website. Webmaster hotlinks to photographer’s image without permission or credit. Since the webmaster is blatantly using copyrighted material in his/her own work without expressed permission, I chalk this one up to a copyright violation.

    On the issue of stealing bandwidth by hotlinking: My opinion has always been that it is along the lines of connecting to the Internet via someone’s unsecured wireless access point. It is not unsecured because the access point owner wants to give away free Internet service, but rather because they don’t know how or haven’t taken the time to secure it. If you knowingly connect to an Internet connection that has not been installed for the expressed purpose of free public access, do you think that is wrong?

    I have both hotlinked and connected to other people’s unsecured access points in a pinch, so if it’s wrong, I am a dirty, dirty boy.

  9. @Gerard: Why is it a big deal? Simple answer: why should I pay for someone to use my images/ illustrations? If you steal my bandwidth and then get dugg (or whatever), there’s the possibility that MY website goes down. Do you think that’s fair?

    @Jon: Right, Right. It’s really no different than when sites were being sued for embedding someone else’s web page in a frame on their site. It amounts to the same thing, and uses someone else’s resources.

  10. Blaine: That’s a good course of action and one I can generally agree with. Of course, C is a bit risky because I’ve seen friendships end over this (wish I were kidding) but generally it is ok.

    Nusuni: Agreed on all fronts.

    Typetive: I have to agree that forming alliances is much better than being combative. I’d like to add though that Creative Commons can be a way of doing that on a much larger scale, something I recommend. Good job on the bandwidth numbers and I like the collect call analogy. I might plagiarize that later… lol.

    Ryan: I wouldn’t call you evil, it was just a poor decision. Everyone makes mistakes. Call up my ex girlfriends and you’ll hear all about mine.

    Raj: I wouldn’t go as far as to say it absolutely isn’t a copyright violation since the legal issues aren’t clear and there are still some potential violations, just that it is less likely to be one. In the legal world, especially with copyright, little is perfect, just a matter of more or less.

    Gerard: Well, if a site hotlinking your image hit the front page of Digg, those thoughts might change. Dreamhost is good and generous but not quite that good. Even with my host I use Divshare for many of the images. Plus I get neat embed tags for others to use and my image on all of my videos/slideshows/podcasts.

    ChrisHogg: Agreed and a point I admittedly skipped due to the legal issues (kind of my thing). Let us not speak of the hotlinkers that have suffered all kinds of humiliation including the replacement of pornographic images, some gross and disgusting, various “image thief” shaming techniques and about three billion 404 errors. A very good point and a word of warning!

  11. In addition to potential legal problems outlined above Ryan, you run the risk of the content changing if the third-party renames or replaces that image file.

    If my memory serves me, Microsoft did this once in one of their forums. One of their staff or forum guys hot-linked to an image (it was harmless) and when the guy on the other end found out, he freaked and re-uploaded a file with the same image name. It replaced it, only this time with hardcore porn. The blogosphere was rolling around laughing at this porn image on Microsoft’s website and Microsoft had no clue until it was pointed out to them.

    I know of other cases where the image gets changes with big text added on top saying “I AM STEALING THIS IMAGE.” It has the same effect, where anyone who wants to maintain some credibility runs into trouble when their readership logs-in to see the main image makes with that text on top.

    It can burn your cred. Just a heads-up.

    Cheers,

    Chris
    Editor-in-Chief
    DigitalJournal.com

  12. Raj: Maybe I’m on the wrong type of hosting, but I don’t give a crap about bandwidth. Any hosting service I’m on is generous enough that bandwidth is never an issue. Why is this a big deal?

    Ryan: John Chow would be proud of you 😉

  13. It’s not a copyright violation, as Jon mentions above, but it’s just wrong. Why the heck should I pay for bandwidth when someone else hotlinks to my site? What’s worse, some engines give image search precedence to the hotlinker. (I’ll have to find the details of that.)

  14. It’s bad, bad form to hotlink when it’s not expressly given as a code (like widgets that are hotlinks or something like flickr).

    It’s absolutely your responsibility to remove the hotlinks immediately when requested. I don’t know what the legal ramifications are, but ethically you’re obligated, you’ll make no friends in the blogging world (not that you can’t survive that way). Not to mention the fact that you’re benefiting from someone else’s copyrighted works by displaying advertising against it.

    Based on your level of traffic you could be costing the host of that photo 2-5 gigs in a month (the low end is based on 80,000 views at 25K). That’s just for one photo.

    Form a strategic alliance with them and get permission. Attribute, link! Good practices really do build traffic.

  15. Besides copyright issues – by hotlinking you are stealing bandwidth, and like jonathan said it could be considered trespassing.

    You’re much better off getting permission and hosting them on your own server for two reasons – obviously legal issues will be avoided and your site won’t slow down if the other server goes down.

  16. I’d take the images down. Jonathon summed it up pretty well.

    I very rarely hotlink to images, because aside from the legal ramifications it is unethical. You are using their resources for your own gains.

    My general course of action is to (a) supply images myself, (b) find images with a license that allow me to use them, copy them to my own server, and then inform the owner that I used them and that I’m willing to remove them if requested – and I never have been, or (c) copy an image from somebody that I know personally and know that they would not have a problem with me using their image, and then inform them in the same manner that I do for option b. Technically, I don’t have the right to use the images, but I always receive a “that’s fine” when I do and I always attribute my source for (b) or (c).

    If I own or buy the rights to an image then I will generally not acknowledge its source.

  17. Ok, this reply will be long so let’s both buckle up.

    The funny thing about image hotlinking is that it is actually less of a copyright violation than if you just took the image and copied it to your server. Since you are hotlinking it there, you are not making a copy of the image and are thus not reproducing it.

    That being said, it isn’t to say that hotlinking is not a copyright violation. First, you are publicly displaying the image on your site and the right to public display rests with the copyright holder. Also, one could easily argue that you are making a derivative work based upon the original and derivative works are, once again, the sole right of the copyright holder.

    The problem with all that I just said is that, in the U.S., it is just a theory. Case law in this area is, to be generous, thin.

    Perfect 10 v. Google addressed some of these issues and found that Google image search was a fair use. However, Google image search hosts thumbnails and links directly to the original works on their own server rather than embedding full photos on their own page.

    To my knowledge, a case like this has not been tested in the U.S. If anyone reading this knows of a case I don’t, please speak up.

    In Europe, the law is a little bit more robust and seems to favor the theory that this is an infringement, it seems like that, in the future, U.S. law may follow this course.

    That being said, copyright is not the only issue. By hotlinking an image there are other legal issues including, trespass of chattels (property), potential violations of the computer fraud and abuse act and breach of contract depending on if the site in question has a legal terms of use.

    When people approach me about image hotlinking, I tell them not to do it and to get permission for the photo and then host their own copy. The exception is, of course, when the site uses embed tags or takes other steps to encourage hotlinking. This offers an implied license to embed away.

    As far as who has the responsibility to take action, I would say to assume it is yours. Even though they would get results quicker by just blocking your site, they have every right to ask you to stop. If we take a look at the potential trespass issue, he has asked you to leave and, if you continue your course, his case in that area would be greatly strengthened.

    I would encourage you, personally, to take the images down. Not only to avoid legal issues and show good faith, but also just to be a nice guy. Ask if you can use them if you host it yourself and see what they say.

    You might be able to work out an agreement and I think that would serve everyone better.

    I hope this helps and I’m sorry to be the bearer of bad news. There just isn’t a lot of clarity here but with so many potential legal risks, I wouldn’t chance it.

    Jonathan Bailey – plagiarismtoday.com

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