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Re: Deep linking barriers in the UK: The Royal Mail

From: Martin J. Dürst <duerst@it.aoyama.ac.jp>
Date: Tue, 27 Apr 2010 18:00:28 +0900
Message-ID: <4BD6A7AC.5040106@it.aoyama.ac.jp>
To: Jonathan Rees <jar@creativecommons.org>
CC: Tex Texin <textexin@xencraft.com>, Pat Hayes <phayes@ihmc.us>, John Kemp <john@jkemp.net>, Tim Berners-Lee <timbl@w3.org>, Paul Libbrecht <paul@activemath.org>, "Henry S. Thompson" <ht@inf.ed.ac.uk>, www-tag@w3.org
Hello Jonathan, others,

[the usual disclaimer: I'm not a lawyer]

On 2010/04/26 21:30, Jonathan Rees wrote:
> On Mon, Apr 26, 2010 at 1:13 AM, "Martin J. Dürst"
> <duerst@it.aoyama.ac.jp>  wrote:
>>> If I have a page on exercises and have an image of a girl demonstrating a
>>> maneuver, and the image is referenced directly for prurient or other
>>> interests, my hosting costs can become significant.
>> If you mean that the image is referenced separate from the Web page it was
>> contained, then that may be a copyright violation. With reference to hosting
>> costs, it may also be theft or fraud. The extreme example would be to refer
>> to another site's one-pixel GIFs (which sure cannot be a copyright violation
>> because there can't be much copyright in such GIFs, but which is clearly
>> bandwith stealing).
> When a user visits site B that has a link to site A, and then GETs the
> resource on site A (perhaps via an IMG element from site B), then
> there are two acts of copying. Site A is copying a URL from site B,
> and the user-agent is copying site A content into their browser
> window. I.e. site B is not copying content from site A. To my
> knowledge neither act of copying can be considered infringing: URLs
> are not considered creative expression, and site A can't go after site
> B unless site B has copied something from site A, which it hasn't.

Let's make sure we are talking about the same thing. This was the case I 
was talking about:

Site A:
<html><head><title>Example page with image</title></head>
<body><h1>Example text and image<h1>
<p>...text...<img alt='example image' src='image.gif'/>...</p>

Site B (Case 1):
<html><head><title>Another page with image</title></head>
<body><h1>Another text with an image<h1>
<p>...text...<img alt='example image'

Site B (Case 2):
<html><head><title>Another page with image</title></head>
<body><h1>Another text with an image<h1>
<p>...text... here's <a
 >something interesting</a>...</p>

What I'm saying is that Case 2 is a simple reference and therefore 
should be permitted in all cases (no need to ask for permission to link 
even if side A says that such a permission is required). My 
understanding is that at least you, and probably most on this list, 
agree with this.

But what I was specifically referring to in my above comment was Case 1. 
To discuss it, let's assume that the text in both pages and the image 
involved are copyrighted material (actual original text/image). Although 
indeed *technically*, site B is never touching image.gif of site A, it 
pretty much looks like a copyright violation to me. Site B is giving 
*instructions* to the browser of the client to download image.gif as 
part of Site B's page. This would at least be similar to company B 
giving instructions to a printer to print image.gif on a leaflet of 
company B, which very much looks like a copyright violation to me.

If you disagree with me on the assessment of Case 1, then let me take 
another stab. It is clear that Site A is publishing a Web page 
containing some text and an image. From a (non-technical) viewer's 
point, clearly the text and the image can be seen as a single entity. 
This would also be how we would look at it if this happened on paper, or 
in a digital document format that included images. The fact that in 
current Web technology, text is contained verbatim while images are 
contained by transclusion shouldn't be used as a dividing line between 
what's allowed without any explicit permission (reference to other's 
work, in particular other's Web pages) vs. what's not allowed (misuse of 
copyrighted material).

> If you know otherwise (either a legal decision or some site-B honoring
> a take-down notice) I would be very interested to hear.

For Case 2, I don't know either, and I'm glad I don't know either, but I 
have to admit that I didn't do any kind of search. For Case 1, I don't 
know either, but I don't know anybody who would claim that including 
other people's images in one's pages without explicit permission would 
be legal, the same way I don't know anybody who would claim that 
including other people's text in one's pages without explicit permission 
(and outside the limits of fair use and such) is legal.

> By the way the Ticketmaster Corp. vs. Tickets.com  case says to me
> that there is no legal protection against "deep linking" in the US. (
> http://ilt.eff.org/index.php/Ticketmaster_v._Tickets.com )

I have looked through that specific page. In my view, a) it's only 
partially about deep linkin, and b) it's not applicable to Case 1 above.

Part of what Tickets.com did was page scraping, extracting 
uncopyrightable factual data and presenting it in its own format. That 
isn't deep linking. The other part of what Tickets.com did was to link 
to Ticketmaster's Web pages, but that is Case 2 above, and the court (in 
my view correctly) ruled that that was allowed because "the user is 
transported directly to the Ticketmaster Web page".

None of this applies to Case 1 above.

>> One possibly salient point with a reference to a Web page is that it's not
>> the the creator of the link that activates it, but the reader.
>>> I am sure you have run
>>> across other examples. If other exercise companies use my embedded
>>> components and do not mention my web site, I don't recover the investment
>>> I
>>> made to create the content.
> That is true, but if site A (you) wants to protect itself I think it
> needs to use technical means (make linking difficult or impossible) or
> licensing (confirmed user agreement to terms), since copyright
> protection doesn't apply.

My understanding would be that in Case 1 above, copyright should apply. 
Of course we don't know for sure until this is hashed out in courts, but 
at least to me, it would look like a rather obvious extension of what 
happens for similar situations in the non-digital world. Of course in 
the mean time, if something like Case 1 actually happens, first a 
friendly email and then if necessary some technical measures may be way 
cheaper than a lawsuit, but that I hope that won't induce anybody from 
the TAG to claim that Case 1 above is allowed or should be allowed.

I hope that with the above distinction between Case 1 and Case 2, we can 
find some agreement, or at least understand our differences better.

Regards,   Martin.

#-# Martin J. Dürst, Professor, Aoyama Gakuin University
#-# http://www.sw.it.aoyama.ac.jp   mailto:duerst@it.aoyama.ac.jp
Received on Tuesday, 27 April 2010 09:01:24 GMT

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