Comment by mcbits | Hacker News Reader

Comment by mcbits | Hacker News Reader

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It seems like more than an implementation detail to me. If Twitter receives a DMCA notice and deletes the image, it will immediately be deleted from all of the sites embedding it. When the publishing, distribution, and unpublishing are entirely under someone else's control, it's really hard to justify treating a link as infringement.

BTW I know you're talking about the way judges actually tend to interpret these things. I'm talking about the way they would interpret things if they had any sense.

With your ebook example, if the ebook "auto-loaded and displayed that content for the user" then you're describing something completely different from what happens when a site links to a tweet. It's more like if the ebook reader parses "Encyclopedia Britannica volume B, page 38" whenever it appears in any ebook and embeds the contents itself. If Encyclopedia Britannica is violating someone's copyright on that page, it's just crazy to hold the ebook publisher liable.

Perhaps it helps to think about the physical equivalent...

Suppose your neighbor "hosts" some copyrighted material in their yard, either on a projection screen or a large poster.

If you decide your visitors may be interested in said content, and move your van out of the way so that your visitors may observe the content in your neighbor's yard as they walk to your front door, is that infringing?

If you additionally set up a sign pointing at your neighbors yard, causing your visitors to look in that direction, is that infringing?

If you decide to make some money by selling advertising space on a sign you set up on your property, right next to your neighbor's display (which is still on their property), is that infringing?

Note that to a casual observer who doesn't know or care where the property line is, the end result is nearly indistinguishable from what would have resulted if you had set up the projection screen or poster in your own yard. (The only difference is that it's a foot further away and controlled by a different person.)

Anyway, while it certainly seems sleazy to profit from your neighbors illegal display, it seems bizarre to conclude that pointing your visitors at your neighbor's display is the same as displaying it yourself.

"BTW I know you're talking about the way judges actually tend to interpret these things. I'm talking about the way they would interpret things if they had any sense."

Gonna disagree, but if you live in the ninth, that's already how they think :)

(now, FWIW; i'm also differentiating between what i think the law, as written right now, is supposed to mean, and what i think it should be. I think, right now, as written, this should be interpreted as infringement. I think the law should be changed, not twisted/ignored)

The sites aren’t linking to a tweet, they’re embedding them. There’s a difference of intent between a plain old <a> link to a tweet’s URL, and the full set of tags, scripts, and configuration used to embed a tweet inline with your page. It would be unreasonable to hold you accountable for a simple link if I had a browser plugin that automatically converted them into embeds, but if you used the twitter markup such that they would be rendered as embeds on any standards compliant browser that’s a different story.

Embedding, a.k.a. hotlinking, a.k.a. transclusion is just another type of linking. Any of those terms would work just as well in my comment because they all share the property that the content is being published by someone else.

But there isn't much of a difference between hotlinks and anchor links in this discussion anyway, since sites (e.g. Google, Pirate Bay) also face legal liability for simple anchor links to copyrighted works. Just Google "[any popular book] pdf" and read the DMCA blurb at the bottom of the results.

But technically they’re not the same. Like, if you were to describe the DOM nodes generated in response to a hyperlink versus an embed tag, they’d be quite different, right?

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