Can you be accused of hotlinking or copyright infringement if you use an iframe (web element) of another website?
Can you be sued for this if the website doesn't prevent iframe using and doesn't expressly forbid it?
In the United States, the case law on framing as copyright infringement is fairly scarce and somewhat conflicting.
Consider first the 2007 Ninth Circuit Appeals ruling in Perfect 10 vs. Amazon.com. Google included framed images on their site. Google did not have the right to display these image works, but the ruling says ultimately that they did not display the works (emphasis mine):
Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen.
Perfect 10 argues that Google displays a copy of the fullsize images by framing the full-size images, which gives the impression that Google is showing the image within a single Google webpage. While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.
Note that this second paragraph highlights that iframe linking may not be a copyright violation, but it may be illegal for other reasons, e.g., trademark violation, by confusing the origin of the framed content.
This ruling appears to be in contradiction to the 1998 district court case Futuredontics Inc. v. Applied Anagramic Inc., which found that framing creates a derivative work. The most striking difference from the Perfect 10 case is in the following passage (emphasis mine):
Defendants primarily rely on Louis Galoob Toys, Inc. v. Nintendo of America, Inc. [...]. In that case, the Ninth Circuit held that a Game Genie which merely enhances audiovisual displays which originate in Nintendo game cartridges does not constitute a derivative work because... it does "not incorporate a portion of a copyrighted work in some concrete or permanent form." Id. at 968 (emphasis added). The Court also noted that the Game Genie could not duplicate or recast a Nintendo game's output. Galoob did distinguish Mirage and noted that the Mirage decision would have been different had the plaintiff "distributed lenses that merely [*10] enabled users to view several art works simultaneously." Id.
Nevertheless, Galoob... is distinguishable from the instant case. Galoob does not foreclose Plaintiff from establishing that AAI's web page, incorporates Futuredontic's web page in some "concrete or permanent form" or that AAI's framed link duplicates or recasts Plaintiff's web page.
There appears to be a fundamental disagreement between these two cases over whether a webpage that includes a link actually "displays" the linked work. The Perfect 10 ruling viewed the page as HTML instructions that were only related to linked works insofar as those instructions could cause a user's browser to render framed content from a copyright holder different from the author of the HTML page. By contrast, the Futuredonics case considered the intended rendered output of a browser as a derivative work that includes the framed page in a "concrete or permanent form" and that "duplicates" the framed page.
I'm not sure how to reconcile these two cases. Perfect 10 is more recent and from a higher court, but I'm insufficiently skilled in law to determine if and how that counts for anything. It's also possible that facts of the two cases are sufficiently different that the different rulings could be reconciled and both remain true simultaneously.
Now that we've considered the case law, if you will indulge me in a moment of armchair speculation, let us consider an interesting hypothetical.
apsillers.com. I host an HTML page on my site at
my_favorite_stories.html page frames a public domain resource at
http://example.com/PD_Story.html. (I am not the owner of
example.com.) Surely, we can agree that this is not copyright infringement.
example.com changes the text at
http://example.com/PD_Story.htmlto include copyrighted content whose use by me would constitute infringement. My
my_favorite_stories.html page remain totally unaltered.
my_favorite_stories.html now violate copyright?
The Perfect 10 ruling says no, because
my_favorite_stories.html is only instructions. The Futuredontics ruling would appear to say yes, because it considers the final rendered output of the HTML, which now suddenly includes infringing content.
It seems powerfully counterintuitive that the infringing status of my written work (
my_favorite_stories.html) should change, dependent on the copyright status of a linked resource, when the content of my written work has remained totally unaltered. Perhaps you might argue that my case is different because I did not intend at the time I wrote my HTML page to infringe copyright. However, intent is irrelevant in making the initial yes/no determination of infringement (but may grant me a lesser punishment, as it would be innocent infringement.)
Yes (presuming that you would be at risk of being successfully sued without using an iFrame)
An iFrame is absolutely no different from directly linking the content. You are still using someone else's work, the exact technical method you employ for that purpose is irrelevant, it is intent (breaching copyright) and result (displaying someone else's intellectual property in a way that beaches copyright) that matter.