Hotlinking or inline linking is the linking of an image on one website to a web page on another website where the original image is located. In the case of Wheat v Google LLC, Christopher Wheat a photographer, operated a website “theirearth.com”; a news media site with original articles, photographs, and a directory to other websites. Mr Wheat claims he is the owner of the copyright in both the articles and photographs on the website which was freely accessible to the public.
Mr Wheat brought a claim against Google LLC for copyright infringement on the grounds that when a user searches Google, the resulting list shows headline results with links to hotlinking websites prioritised over his own website and when the user clicks on the headline result, he/she will be directed to a hotlinking website on which his images are displayed as hotlinks to his own website ‘theirearth.com’. He alleges that this results in a loss of traffic to his own website and that Google has engineered or knowingly permitted the results to show the hotlinking sites higher in the results ranking in order to increase revenue from advertising on those sites affecting revenues on his own website. His main claim, inter alia, is that Google did not have his consent to use his cached content to enable internet users to access said content via hotlinking websites and that the communication was without his licence.
In an earlier judgement given against an application to file out of jurisdiction, it was found that the complaint lay not against Google, but with the hotlinkers themselves. Hotlinking does not involve an act of copying and therefore no copyright infringement occurs. The complaint that Google has prioritised one website over another does not give rise to a claim for copyright infringement. The application was dismissed and on appeal was upheld. The complaint against Google cannot be unlicensed communications because they are not communications to a new public nor communications by a new technical means.
The US Court of Appeal for the Ninth Circuit considered this in a similar complaint against Google and ruled that inline linking does not violate US copyright law. The inline linker does not place a copy of the image on its server, but a code which points to the server where the copyright owner has placed the image file … ‘the Copyright Act…does not protect a copyright holder against [such] acts….’.
Wheat v Google LLC and Monaco Telecom  EWHC 550 (Ch)
Wheat v Google LLC  EWHC 27(Ch)
Perfect 10, Inc v Amazon.com,Inc 487 F.3d 701 (9th Cir. 2007)