Where The Internet Stops And My Blog Begins

So here's some food for thought for the blogosphere. Lately I've been pondering a few of the legal aspects of the Internet, namely what it is we are all allowed to do, and what it is some companies think we shouldn't be allowed to. Let me give you a use-case to demonstrate what I'm talking about.

Photo by Ben Sheldon on Flickr

Let's say I set up a blog, and I'm checking out Flickr and I see a photo I like. Let's say for a second that the CC license is set in such a way that I can use the photo on my blog. So, I right click on the image, say "copy image address", and slap it into a blog entry. Now, according to Flickr's terms of service, I'm not technically allowed to link to any one of their images without providing a hyperlink back to the website. Which from their perspective, makes sense, since they want to drive traffic to their own website. However, assuming I'm not a member of Flickr, I have never agreed to the terms of service, so as far as I'm concerned, it's just a random bit of data on the internet that I've linked to. Isn't that fair use (assuming I'm not breaking the legal copyright of the owner)? And once you've come up with your answer, ask yourself how Google image search would rank based on the same criteria.

Another example is Youtube. They've set up their website so that you can view all the videos using a player online. However, there is some HTML magic you can do that gives you the actual flash FLV file URL that you could conceivably play on your own web site. There are a few web sites where you can punch in a Youtube watch URL and download the FLV file for it. These sites aren't breaking encryption or giving out launch codes for a nuclear strike, they are simply taking advantage of some undocumented URL redirects that Youtube takes advantage of under the hood to get the actual FLV file for their player. Apparently some of these websites have been given cease and desist orders because users no longer are forced to go to Youtube and watch advertising or whatever. My question is, isn't that fair use? They argue that it's against their terms of service, but same argument I made above - if I'm not a member of Youtube, am I bound by their terms of service?

Let me do another spin on it. Search engine traffic to popular websites often takes up a fair percentage of the bandwidth for that website. Is it fair for me to bury a terms of service on my blog that states all search engines will be charged for excess bandwidth to my site? Of course, people will argue that it's up to me to add information to robots.txt if I don't want search engines visiting my site, but that of course implies that search is an opt-out service where I have limited control to opt-out (since not all search engines properly respect robots.txt).

So if I do something to another site (Flickr, Youtube, etc), isn't it really their responsibility to block my IP address or whatever if they don't like how I'm using their data (i.e. shouldn't they have to opt-out to my usage)? I think it's strange that their seems to be implied legal penalties for what I consider fair use of their site, but nothing of the sort for mine. It's one thing if I'm outright breaking some hardcore encryption (since that falls under the DMCA in the US), but if I'm just using a publicly available (albeit hard-to-get) URL that gives me a flash file for video on a video website, should they really have any say in that?

I'm curious what everyone thinks. Chime in below.