Linking, TOS and Copyright

Yesterday and today, I’ve been having a fairly passionate debate over Twitter about the rights and wrongs on linking to resources on websites. As Twitter is not the place to set out arguments properly, I thought I’d write it up here.

Craig Scarborough (scarbsf1 on Twitter) writes a very good blog looking at the technology of F1. He looks at the photos that come out of the various races/events and tries to explain how the cars work, new changes etc.

After the Turkish GP, he tweeted a few comments about things that had been happening. Many of these tweets, contained a link to an image, illustrating his point.

He was called out by Sutton Images (@suttonimages) for ‘using’ the image and that doing so was a copyright infringement

I support copyright, it’s a needed legal framework to protect content/creations and allow the creator to derive value from them – therefore create a business or make a living. However, I’m fundamentally against some of the stupid, outdated, complex and idiotic implementations of copyright law, many of them driven by commercial considerations of organisations. My own images are usually licenced under Creative Commons, which relies on copyright to work; occasionally I reserve all rights depending on the image. But I’m not trying to make a living from it as Sutton Images is, so rightly that company manages their rights carefully.

However, Sutton Images were challenged by many about his point of view. It was pointed out repeatedly that linking to an image is NOT a copyright infringement (although there have been attempts in various legal jurisdictions to argue that it is, it hasn’t really stuck). As the Terms and Conditions on formula1.com state:

You may make a copy of this content for your personal non-commercial use only, provided that you keep all copyright and other proprietary notices intact and you agree not to modify, copy, reproduce, republish, upload, frame, post, transmit or distribute by any means or in any manner, any material or information on or downloaded from the Site including but not limited to text, graphics, video, messages, code and/or software without our prior written consent.

So I can download an image from the site (or take a screenshot of the page) and keep it on my computer but I can’t do anything with it.

But all Craig did was link to an image. There’s no copying taking place, there’s no reproduction, it’s a link to a resource on the formula1 site.

But further down in the Terms, you find this

…links can only be made to this Site with our prior approval (please email admin@formula1.com for further information). Deep linking is prohibited.

So, Craig has fallen foul of this clause in the Terms and Conditions. What he has done is deeplinked directly to the image URL so all you get on the webpage is the image. There’s no context, there’s no copyright licence and no way (unless you look at the URL) to determine who owns the image. This is not a copyright infringement, but it is against the site terms.

Now, very few sites actually have this restriction in their Terms, so there’s rarely a reason to even think that linking to a site breaks their terms. I’ve done it twice in this article and I know I have broken their terms now, but I wouldn’t normally have checked; do you really think the site wants me to email them every single time I want to point people to their content? If that was the case, they might as well take the site offline as if no-one can link, no one can discover and I don’t think they want that. There is a completely different argument about whether such terms are actually legally enforceable, but this is not the place for that dicussion

So Craig was incorrect in linking to the image due to the site terms; but Sutton Images was incorrect in framing the problem as a copyright infringement.

So what to do now?

• Craig could ask permission from formula1.com to link to them. The obvious thing would be to the full web page with the image, thus retaining all contextual and copyright information. However, with the site structure, this appears to be impossible; they use a lightbox so no way to link to a specific image on the page that I can see. So this does not actually help the situation, as such a link would be useless.
• Craig could go to Sutton directly and use images from that site. Their terms are pretty friendly for non-commercial usage and his website is obviously non-commercial
  

  We appreciate that our material may help to back-up your own research or to augment your organisation’s promotional activities. You may use the owned material on this Website for non-commercial use provided you do all of the following:

  a) act within the copyright laws of England and Wales, or of the territory in which the material was originally published;

  b) publish the material without any adjustment which would alter its meaning or bring , its personnel, representatives, agents, clients or the subject of the material or any other person or entity into disrepute;

  c) meet the requirements of current Human Rights legislation and Data Protection Law within Europe (which rights may extend to individuals and entities resident outside the European Economic Area);

  d) publish a credit to a specific and relevant publication or website, and to any individual named author, at the foot of the re-used material; and, if reproduced on a website, include a URL link to the original article or the point of entry to that website page or to the publication’s website page as agreed in advance in writing with Sutton Images.

• Craig could link only to images that don’t have a linking restriciton on them.

The best course of action is probably a mixture of these but whatever the result, I’m hoping the blog does not stop as it is a valuable resource on the web.

Update: 10.40 12 May. Craig has just tweeted that issue is closed and sorted, so hopefully something has been agreed; I wait for his explanation

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