Pixsy Letter Even Though Image Isn't Hosted On Website

[Soybread]

We received a letter from Pixsy today, but noticed that the image was being hosted on a different website altogether (twimg). The image is on our webpage, but if the image isn't actually being hosted on our physical server, are we at fault?

[Robert Krausankas (BuddhaPi)]

nope....linking to an outside source ( image) is not infringement, as there is no "copy".

[Ethan Seven]

Robert’s answer is based on a 9th Circuit case that has been rejected or not applied in other circuits.   Inline linking is not a valid defense outside of the 9th Circuit.   The Bietbart case from the 2nd Circuit, which does not require possession of the image, seems to be the opinion more courts are adopting. 

However, the fact that the clam is being pursued by a non-law firm and a company based in Germany should eliminate any fear of getting sued.  I have not heard of Pixsy even referring cases to attorneys in the U S. 

If you are fine with not paying for something you may have used, you can ignore Pixsy. 

[Robert Krausankas (BuddhaPi)]

The Bietbart case from the 2nd Circuit, which does not require possession of the image, seems to be the opinion more courts are adopting. 

So in other words if you outside the 9th circuit and "embed" or link to image from Getty you could still be on the hook for infringement?? Even though getty now allows  on their images??... I think if it were me I would argue this decision tooth and nail, and stand my ground that no copy was made..

[DavidVGoliath]

Ethan Seven is partly correct: the "server test" has been argued as still infringing on the copyright holder's right to display under 17 U.S. Code §106, part 5, and although it's not settled case law yet, there's a fairly strong argument that it will become so... even in the 9th circuit (eventually)

Frankly, it's a little surprising that this sort of challenge to the "server test" method wasn't made sooner. After all, the right to display can be infringed by using a picture resident on any server - whether an image is 'hotlinked' or not, the end user experience of viewing the work is no different.

Naturally, there are quite a few parties that are trying to challenge this viewpoint because their business model relies on hotlinking to images rather than hosting them because a) hosting images without license exposes them to infringement liabilities and b) actually licensing images instead of hotlinking would eviscerate their revenues.

[Matthew Chan]

Just to be clear on my admittedly biased and conservative position.  Most people should just not hot-link. In my view, it is too close to the line. And if you must hot-link, I would be transparent about it so as to not give any false impression that you are not hosting the image in question.

Actually, there is a difference between posting a link to an image vs. an embedded hot-link. One clearly displays a URL only or text with a link.  The other is embedding an image using a remote link. The  It used to be the ELI Forums would automatically display memes with any image link users posted on the forums. However, it created confusion because the software feature masked the fact it was actually an image link that someone posted but it implied that ELI hosted it which is not the case. ELI hosts very few images and memes itself.

I deactivated that auto-display function as to prevent any such confusion.  So, if anyone wants to post an image link, it is very clear that it is an outside link. You can't view it without clicking and going to that site hosting the image.

I have read many blogs which make reference to notable images. However, out of caution, they don't display at all, not even a snippet. They simply place a link to direct people to view the image of the source.

Professional bloggers are getting more cautious. They don't want the hassle of a copyright infringement accusation. They entirely discuss and comment on images hosted and displayed on other sites. But they will not even do an embedded hot-link. There is only a text-link to direct people who want to see the image being discussed.

[Matthew Chan]

Agreed.

However, the fact that the claim is being pursued by a non-law firm and a company based in Germany should eliminate any fear of getting sued.  I have not heard of Pixsy even referring cases to attorneys in the U S. 

If you are fine with not paying for something you may have used, you can ignore Pixsy.