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EFFector - Volume 16, Issue 18 - Web Linking Need Not Cause Copyright Liability


EFFector - Volume 16, Issue 18 - Web Linking Need Not Cause Copyright Liability

EFFector       Vol. 16, No. 18      July 11, 2003

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 257th Issue of EFFector:

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Web Linking Need Not Cause Copyright Liability

Federal Court Changes Course in Case

San Francisco - A federal appeals court on July 7 changed course in a closely watched case on the legality of linking on the World Wide Web, issuing a revised ruling siding with search engine against photographer Leslie Kelly. The Electronic Frontier Foundation (EFF) had filed a brief urging the court to permit Web linking to copyrighted images.

The Ninth Circuit Court of Appeals' original ruling, issued in February 2002, caused a stir by saying that linking to a copyrighted photo on a website without permission violates the copyright owner's "public display" rights.

The EFF urged the court to reconsider this portion of its ruling, arguing that the ruling against "in-line linking" threatened to transform everyday website activities into copyright infringements. Today the court withdrew the controversial portion of its opinion, leaving it to the lower court to take a fresh look at the issue.

"Website owners can rest a bit easier about linking to copyrighted materials online," said EFF Senior Staff Attorney Fred von Lohmann. "By revising its ruling, the court removed a copyright iceberg from the main shipping lanes of the World Wide Web." is a search engine that helps people find publicly available image files on the Web. For example, the Ditto website would show someone who enters a search for "sailboat" a selection of images of sailboats from around the Web. Ditto presented each image in a miniature form, known as a thumbnail, and provided links that would allow the searcher to open a full- size version of the image in a new web browser window. Leslie Kelly, a photographer, sued Ditto after Kelly discovered that Ditto had indexed his website and the images found there.

In its original ruling, the Ninth Circuit found that's use of thumbnail images was allowed under the copyright law doctrine of "fair use," but held liable for copyright infringement for opening a new window to display the image. Numerous other Web search engines, including Lycos, Google, and Altavista, use this technique, known as "in- line linking" or "framing." Today, the court retained its earlier "fair use" ruling, but deleted the discussion of in-line linking.

The case title is Kelly v. Arriba Soft Corp., No. 00-55521, originally decided on February 6, 2002, and revised on July 7, 2003. Arriba Soft is the former name of Inc.


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California Supreme Court Sides With Email Pamphleteer

Intel v. Hamidi Decision Protects Internet Speech

Los Angeles - The California Supreme Court on June 30 ruled that former Intel employee Ken Hamidi did not "trespass" on Intel's computers when he sent email messages to Intel employees at work.

The case, called Intel v. Hamidi, arises from six firmwide email messages sent by Ken Hamidi during a two-year period to thousands of Intel employees worldwide. The messages admittedly did no harm to Intel's computer systems and caused no delays in its computer services. Intel's only claim of harm was that the employees who read Hamidi's email were distracted or upset or lost productivity.

The Supreme Court stated that the legal claim of trespass to chattels requires damage to Intel's computers or their usefulness, not just distraction or loss of productivity due to employees reading messages that criticized Intel. The decision noted that calling distressing content of a message a "trespass" on the computer was as wrong as claiming that "the personal distress caused by reading an unpleasant letter would be an injury to the recipient's mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipient's telephone equipment."

"The California Supreme Court today protected the rights of those who send email by refusing to extend the trespass to chattels doctrine to electronic communications that do not harm property," said EFF Senior Staff Attorney Lee Tien.

"The Hamidi case establishes that even if you send electronic communications after recipients tell you not to, you are likely protected from spurious trespass lawsuits as long as there is no harm to computer systems as a direct result of the electronic communications," added EFF Legal Director Cindy Cohn. "Recipients of unwanted email may pursue legal claims other than trespass in certain circumstances and can pursue even trespass claims in the event of damage to their computer systems."

The Electronic Frontier Foundation (EFF) had filed an amicus brief in the Intel v. Hamidi case, arguing that the lower court distorted the "trespass to chattels" doctrine when applying it to the Internet. EFF noted that the doctrine has already been used by companies in several cases around the country to stop competitors from gathering comparative price information from websites, something that is generally viewed as assisting consumers.


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EFF Opposes Printer Manufacturer's Broad DMCA Claims

Supports Competitor's Remanufacture of Toner Cartridges

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal appeals court to rule that refilling printer toner cartridges does not violate the DMCA or infringe copyright. The case will determine whether purchasers of printers continue to be able to buy compatible replacement toner cartridges from competitors of Lexmark or whether they are forced to buy only "factory parts" from Lexmark once they've purchased a printer.

Printer maker Lexmark had sued, claiming that cartridge remanufacturer Static Control Components circumvented Lexmark's access control technologies and infringed its copyrights by "reverse engineering" its printer toner cartridges. Static Control produced replacement microchips that enabled resellers to refill toner cartridges and sell them more cheaply.

Lexmark cited provisions of the Digital Millennium Copyright Act (DMCA) and traditional copyright law in the lawsuit. The district court ruled in Lexmark's favor, and Static Control appealed to the Sixth Circuit.

"Creating a post-sale monopoly in printer toner cartridges clearly wasn't what Congress intended when it past the DMCA," said Wendy Seltzer. "The Lexmark lawsuit shows how far copyright law has strayed from its original foundations, that is, 'to promote progress of science and useful arts.'"

EFF's amicus brief continues the EFF tradition of defending the rights of technologists and innovators. The brief argues that manufacturers should not be able to use the law to thwart interoperability with their products, because reverse engineering is protected fair use of copyrighted programs.


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CA Solicits Citizen Input on E-Voting; EFF Issues Alert

San Francisco - On July 2, California Secretary of State Kevin Shelley opened a 30-day public comment period on electronic voting. The Electronic Frontier Foundation concurrently issued an action alert warning that electronic voting machines installed without a verifiable paper audit trail and open source software programming are vulnerable to election fraud. Comments received during this period will be considered when Sec. Shelley issues an order to the Voting Systems Panel on how California will address these issues.

"Touchscreen voting machines can increase accessibility for people with disabilities, reduce the cost of printing multilingual paper ballots, and make the experience of voting less confusing," explained EFF Legal Director Cindy Cohn. "However, without basic auditing checks, electronic voting machines dramatically raise the stakes for insider and hacking attacks resulting in election fraud."

"We need to ensure that no one can hack an election," added EFF Senior Staff Attorney Lee Tien. "Electronic voting technology is wonderful, but it must also be verifiable outside the voting booth."

The EFF action alert provides an easy way for California residents to write Sec. Shelley and ask him to ensure that California's new touchscreen voting machines have a voter-verifiable paper audit trail, as well as open software source code available for easy and ongoing independent inspection.

EFF recommends that Secretary of State Shelley express support for San Mateo County and other counties that have already taken great strides toward verifiable voting systems and that he require verifiable voting systems for all other California counties. The comment period will close on August 1.


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Digital Mix: A Special BayFF Celebrating Illegal Art

On July 25, the Electronic Frontier Foundation will host a night of music, art, and conversation to celebrate digital culture. Hosted at the Black Box in downtown Oakland, this special BayFF will bring up-and-coming artists of electronica, digital film, and illegal art together with leaders from the cyber-rights movement. Lawsuits and legislation have become the weapons of choice for dealing with file-sharing and cultural recycling ("sampling"); come out and discover what all the hype is about. Between laptop music, hip hop, and industrial performances, you will hear from people who are fighting to protect new forms of expression and cultural distribution from the attacks of the entertainment industry. This is an all-ages event.



  • Fred von Lohmann (Electronic Frontier Foundation)
  • Glenn Otis Brown (Creative Commons)
  • Ray Beldner (Illegal Art)

Sponsored By:

  • XLR8R Magazine

Where: Black Box at 1928 Telegraph Avenue Oakland, CA
When: Friday, July 25th, 8 p.m. - 2 a.m.
Cost: $5 suggested donation
All ages welcome
Easy BART access @ 19th St. Station in Oakland
Directions available online.
For more information please contact:

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Deep Links

Deep Links features noteworthy news items, victories, and threats from around the Internet.

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Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please our online calendar.

Monday, July 14: Fred von Lohmann at American Association of Law Libraries, Seattle - (10:15 AM - 11:15 AM)

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EFFector is published by:

The Electronic Frontier Foundation
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Ren Bucholz, Activist

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