Framing, linking, and copyright on the Web

This Tech Talk column originally appeared in The Exponent (University of Alabama in Huntsville), Vol. 33, No. 21 (February 21, 2002). Digitized issue: UAH LOUIS archive. Reproduced here courtesy of that archive.

The Ninth U.S. Circuit Court of Appeals recently handed down a controversial copyright ruling involving framing and linking, two important World Wide Web concepts. Rather than applying the reasonable person principle, the court declined to allow its failure of understanding to prevent the addition of yet another judgment to our nation’s collection of ham-fisted jurisprudence.

Let’s pause to define terms. Linking is creating a hyperlink, which, in the context of the WWW, is an element that upon selection directs a browser to retrieve the resource at a certain Uniform Resource Locator (URL). The Kelly v. Arriba Soft Corporation decision defines framing (also called inlining) as using a “full-sized image, imported directly from the originating website.” Despite the narrow definition (in this case, the copyrighted works are images), one can frame content other than images.

The plaintiff, Les Kelly, is a professional photographer who displays examples of his work on the web. Kelly accused Arriba Soft Corporation—now known as Ditto.com—of displaying his works ina search engine in such a way that it infringed his copyright. Arriba’s search engine produced thumbnails—small, lower-resolution images—that the user could click to view a framed image. The court ruled that the thumbnails were a fair use because they’re “significantly transformative” but that “the display of the larger image [i.e., framing] is a violation of Kelly’s exclusive right to publicly display his works.”

Les Kelly, like the Recording Industry Association of America did in RIAA v. Napster, ignores a fundamental truth: if you distribute works in a medium such that perfect copies are cheap and easy to make, then you may as well give it away. Kelly has an advantage that RIAA doesn’t: he has the ability to more tightly control the distribution of his work. If Kelly didn’t want people to have full-sized vit of his work, then he shouldn’t have put them on the web, a restriction that isn´t prohibitive because images used in webpages are usually nowhere near photo quality. (Similarly, Lars Ulrich accused Napster of distributing his masters, extremely high-quality audio recordings, even though the MP3 format is lousy and relatively poor quality.) More importantly, if Kelly didn’t want other websites to inline his images, he could have configured his web server to disallow such use, thus avoiding the costly court battle.

As a Warren Buffett capitalist, I find America’s brand of lazy capitalism distressing. Rather than digging it out, competing in the market, and, I don’t know, actually being creative and intelligent, we’re too eager to plead with the government to subsidize mediocre business models with the coercive power of State. Kelly v. Arriba was a totally unnecessary case, but now, thanks to lazy capitalism, we have a bad ruling that the out-of-touch and the nonindustrious will use as a shillelagh to pound people who understand the web and who aren’t doing anything wrong. The funny part is that lazy capitalists such as Les Kelly and RIAA are shooting themselves in the foot by contracting their markets. Studies have shown that MP3 sharing increases music purchases by allowing listeners to try-before-buy. The same logic applies to search engines that could potentially bring more buyers to Kelly’s website.

The lesson from all this? Don’t bother trying to idiot-proof because there will always be a bigger idiot.