The Legal and Ethical Dilemmas of Inlining in Web Content

Every day, millions of websites display images, videos, and other content that appear seamlessly integrated into their pages. But what if those elements aren’t actually stored on the website you’re viewing? This is the technical reality of inlining, a practice that has sparked significant legal debate about where technological convenience ends and copyright infringement begins.

What is inlining and how does it work? 🔗

Inlining, also known as embedding, is a protocol that allows a special type of link to be inserted into one webpage, enabling viewers to see graphic files hosted on a separate webpage. When you embed a YouTube video on your blog or display an image from another server, you’re using inline linking.

The technical process is straightforward. A website includes HTML code that instructs your browser to retrieve content from another server and display it as if it were part of the original page. The content never actually transfers to the website you’re visiting. Instead, your browser communicates directly with the third-party server hosting the image or video.

This distinction between what appears on your screen and what’s actually stored on a website’s server has become central to copyright disputes.

The copyright concerns surrounding inlining 🔗

Inlining creates several copyright challenges that traditional linking does not. When content from one website appears embedded within another, it can obscure the original source and mislead users about who created the material.

The issue of proper attribution 🔗

Unlike a standard hyperlink that takes users to the original website, inlined content displays within the context of a different site. Visitors may never realize they’re viewing material from elsewhere. This raises concerns about moral rights, particularly the copyright author’s right to claim authorship of their work. When users cannot identify the original creator, the author’s attribution rights are effectively stripped away.

Economic impact on content creators 🔗

Content creators often rely on advertising revenue and website traffic. When their images or videos are inlined on other sites, users consume the content without visiting the original page. This practice can deprive copyright holders of advertising income and reduce their ability to monetize their work. The use of inline linking deals a blow to publishers because it displays their content on an aggregator’s website without sharing web traffic, effectively taking away potential revenue.

The legal landscape: key court decisions 🔗

Courts have grappled with whether inlining constitutes copyright infringement, with several landmark cases shaping current understanding.

Kelly v. Arriba Soft Corporation 🔗

This 2003 case involved Leslie Kelly, a professional photographer whose images appeared in Arriba Soft’s visual search engine as smaller, lower-resolution thumbnail copies. When users clicked on these thumbnails, the full-size images appeared within Arriba’s website through inline linking.

The Ninth Circuit Court of Appeals determined that creating and using thumbnails in the search engine qualified as fair use. However, the court reversed the lower court’s decision regarding the display of full-sized images through inline linking, remanding the case for further proceedings. The court ruled that it was premature to decide whether displaying the larger images violated Kelly’s exclusive right to publicly display his works.

Perfect 10 v. Google 🔗

In this 2007 case, Perfect 10, an adult magazine publisher, sued Google for copyright infringement related to its image search service. The case introduced the “server test,” which became a crucial framework for analyzing inline linking.

The Ninth Circuit held that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. According to this reasoning, since Google’s servers didn’t store the full-size images but merely provided HTML instructions pointing to third-party websites, Google wasn’t directly displaying the copyrighted content.

The court explained that the computer owner who stores and serves electronic information to users is the one displaying that information. Conversely, a computer owner that merely provides inline links or frames content without storing it is not displaying that information for copyright purposes.

Challenges to the server test 🔗

Not all courts have embraced the server test. Two recent cases have declined to follow the previously-created server test for determining copyright infringement of content displayed on a website. These decisions suggest an increasing emphasis on the user’s perspective rather than the technical mechanics of how content is transmitted.

Fair use considerations 🔗

Even when inlining involves copyrighted material, fair use doctrine may provide a defense. Courts analyze four factors when determining fair use: the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the potential market.

Search engines have successfully argued that their use of thumbnails and inline linking serves a transformative purpose by helping users find information rather than simply reproducing the original work. This transformative use, combined with the reduced size of thumbnails, has generally weighed in favor of fair use for search engines.

International perspectives 🔗

Copyright law regarding inlining varies significantly across jurisdictions. In Germany, making content available to the public on a website by embedding content with inline links now appears to be copyright infringement. This applies even though no copy is taken and stored, and the image never physically becomes part of the website.

The European Union has taken a more restrictive approach than the United States. The EU’s directive on copyright law includes a provision requiring content aggregators to negotiate license fees for display of content through embedded links, directly targeting inline linking practices.

Best practices for website operators 🔗

Given the uncertain and evolving legal landscape, website operators should take precautions when using inlining.

Seek permission when possible 🔗

The simplest way to avoid legal problems associated with linking, framing, and inlining is to ask for permission. While permission may not be necessary for regular hyperlinks to homepages, inlining content warrants obtaining explicit authorization from the copyright holder.

Use linking disclaimers 🔗

When obtaining permission proves difficult, website curators can place linking disclaimers to minimize liability for activities that occur when visitors view the linked content. These disclaimers should clearly state that the site does not endorse the content and waives liability for any unauthorized activity.

Respond promptly to takedown requests 🔗

If a copyright holder requests removal of inlined content, it’s generally advisable to comply promptly. Resisting such requests can lead to costly litigation, even if you believe your use falls within fair use or does not constitute infringement under the server test.

Consider the context and purpose 🔗

Courts are more likely to find infringement when inlining creates confusion about the source of content or when it’s done for commercial gain at the expense of the copyright holder. Be mindful of how embedded content appears to users and whether your use could be perceived as appropriating someone else’s work.

The ongoing debate: innovation versus protection 🔗

The legal treatment of inlining reflects a broader tension in digital copyright law between fostering technological innovation and protecting creators’ rights. Proponents of permissive inlining rules argue that the internet’s functionality depends on the ability to reference and display content from various sources. A German court recognized that a sensible use of the immense wealth of information offered by the World Wide Web is practically impossible without drawing on search engines and their hyperlink services.

On the other hand, content creators and publishers argue that overly permissive rules enable widespread appropriation of their work without compensation or attribution. The rise of content aggregators that display substantial portions of articles and images through inlining has intensified these concerns.

Courts continue to struggle with balancing these competing interests. The server test provides a bright-line rule that offers certainty but may not adequately address situations where inlining effectively substitutes for visiting the original source. Alternative approaches focusing on user perception and market impact may better protect copyright holders but create more uncertainty for website operators.

Emerging technologies and future challenges 🔗

As web technologies evolve, new forms of content embedding and display continue to emerge. Social media platforms extensively use inlining to allow users to share content across networks. Artificial intelligence tools that aggregate and display content from multiple sources present additional challenges to traditional copyright frameworks.

These developments will likely require courts and legislators to refine legal principles governing inlining. The fundamental question remains: when does displaying content through technical means that don’t involve making a copy nonetheless constitute an infringement of the copyright holder’s exclusive rights?

What do you think? Should the law focus on the technical reality that no copy is made when content is inlined, or should it prioritize the user’s experience and the economic impact on copyright holders? How can we balance the internet’s need for interconnected content with creators’ rights to control and benefit from their work?

References

1. https://www.findlaw.com/smallbusiness/business-operations/website-linking-framing-and-inlining.html
2. https://egyankosh.ac.in/bitstream/123456789/7670/1/Unit-9.pdf
3. https://www.bakerbotts.com/thought-leadership/publications/2020/may/inline-linking-embedded-content-might-violate-copyright
4. https://www.copyright.gov/fair-use/summaries/kelly-arriba-9thcir2003.pdf
5. https://caselaw.findlaw.com/court/us-9th-circuit/1456066.html
6. https://www.dmlp.org/legal-guide/linking-copyrighted-materials
7. https://en.wikipedia.org/wiki/Copyright_aspects_of_hyperlinking_and_framing
8. https://www.finnegan.com/en/insights/articles/potential-liabilities-for-web-linking-to-copyrighted-content.html