“What is my liability for linking to copyrighted material?” It’s a question we hear often. Below, we’ll get to some answers.
Can I Be Found Legally Liable Deeps Links To Rights Protected Content?
In the earliest days of cyberspace, courts recognized that linking was an inherent aspect of the medium.
Ford Motor Company v. 2600 Enterprises
In the 2001 case Ford Motor Company v. 2600 Enterprises, for example, Michigan’s federal court rejected the automobile manufacturer’s motion for a preliminary injunction. At issue was a link to Ford Motor’s homepage from the website fuckgeneralmotors.com maintained by 2600 Enterprises. Ford had brought trademark dilution actions, trademark infringement, and unfair competition charges under the Lanham Act.
In its decision, the court stated:
“This court does not believe that Congress intended the FTDA [Federal Trademark Dilution Act] to be used by trademark holders as a tool for eliminating Internet links that, in the trademark holder’s subjective view, somehow disparage its trademark. Trademark law does not permit Plaintiff to enjoin persons from linking to its homepage simply because it does not like the domain name of other content of the linking webpage.”
The Battle of the Online Ticket Sales Websites
Two years later, two online ticketing giants came to blows. Tickets.com was providing a backdoor entrance via deep link into Ticketmaster’s website, to help its customers acquire tickets when tickets.com couldn’t assist them. The link was clearly labeled: “Buy this ticket from another online ticketing company.”
Ticketmaster hit tickets.com with a lawsuit, charging copyright infringement among other things. The copyright charge was based on Ticketmaster’s assertion that a URL is a copyrightable item – at least, in the manner in which tickets.com was using it. The Court rejected this notion, concluding, “There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.”
Since then, no US court has ruled that a deep link, like the one in the ticket case, from site to another infringes either copyright or trademark protections unless such links constituted circumvention technology or contributory copyright infringement. (Keep reading – we’ll get to those below.)
Can I Be Found Liable For Inline Linking to Copyrighted Material?
Inline linking, also referred to as embedding, refers to jimmy-rigging one’s HTML code so that another site’s content displays directly on your site. Traditionally it’s been used as a means of saving bandwidth when you want to display images; these days it’s most often used with YouTube videos (which allows embedding).
Perfect 10, Inc. v. Google, Inc.
An important lawsuit dealing with inline linking is the 2007 suit, Perfect 10, Inc. v. Google, Inc. In 2001, men’s magazine Perfect 10 (P10) began sending desist notices to search giant Google, on the grounds that Google’s image indexing technology violated their copyrights. P10 also objected to Google’s automatic thumbnails of P10’s images to facilitate users’ search process.
In 2004, P10 followed up with a lawsuit claiming a variety of copyright and trademark infringement claims, and filed an injunction to get Google to stop linking to its images. In an initial ruling in 2006, the central court of the Central District of California asserted that while the thumbnails might be considered an infringement, Google’s links to the materials were not. The Court did not order Google to take the thumbnails down.
A year later, the U.S. Court of Appeals for the Ninth Circuit based in San Francisco somewhat apologetically upheld the injunction against Google’s use of thumbnails:
“Although the Court is reluctant to issue a ruling that might impede the advance of internet technology, and although it is appropriate for courts to consider the immense value to the public of such technologies, existing judicial precedents do not allow such considerations to trump a reasoned analysis of the four fair use factors.”
The Ninth Circuit Court, however, rejected the notion that inline linking constituted copyright infringement. It reasoned that all HTML is, is code pointing to another site. No copy of the controversial materials are actually hosted on the site.
Other courts have found similarly, and it seems unlikely that embedding media in your website will expose you to legal liability…with a few exceptions (keep reading).
Can I Be Found Legally Liable For ‘Framing’ Other People’s Content?
Framing is a practice that uses HTML to subdivide webpages that showcase various types of content from other sites.
Washington Post v TotalNews
In the late 1990s, a company called TotalNews created a portal that instead of merely linking to headlines — á la the Drudge Report — framed links to the homepages of the Washington Post, CNN, CBS, NPR among others, displaying TotalNews advertising around the margins of the news content.
The Washington Post was but one of several news organizations that sued TotalNews. “At the heart of Defendants’ wrongful conduct is a practice known as ‘framing’ that causes Plaintiffs’ websites to appear not in the form that Plaintiffs intended, but in an altered form designed by Defendants for their own economic advantage,” the complaint avowed.
The suits were settled out of court, and, to this day, no court has ever issued a decision on the legal use of frames.
It seems likely any court would view the potential copyright issues raised by the use of frames the same way it would view inline linking, since the issues raised are essentially the same. Framing might be viewed as more problematic when it comes to trademark infringement, though, since a viewer could easily come away with the impression that all the material on the framing website belongs to the website creator.
Contributory Copyright Infringement
Suppose you run across a website where someone has uploaded his most recent iPod playlist, complete with mp3s. “Wow,” you think, “some great music here!”
Can you run into legal difficulties for sharing it with your friends via an online link?
Yes, you can if the person with the online playlist is hosting those copyrighted mp3s illegally.
The 1998 Digital Millennium Copyright Act (DMCA) explicitly extended copyright protection laws to the once wide open frontiers of cyberspace. But the law’s main purpose is not to lock up bad guy copyright infringers, but rather to remove offending content from public display. The liability of websites posting infringing content is actually intentionally limited under the terms of the law, since tracking down the offenders is often a time consuming process.
The DMCA also offers you an out: if you did not know that the website to which you linked was hosting infringing content, and you remove your link promptly upon receipt of a DMCA take-down notice, then you’re immune from liability.
But what if you’re not linking to the website hosting the playlist itself, but only to a blog that links to that website?
Bernstein v. J.C. Penny
In the 1998 case, Bernstein v. J.C. Penny, a photographer named Gary Bernstein sued JC Penney because over a website page featuring a perfume advertisement. The department store had linked to the Internet Movie Database, which, in turn, had linked to a Swedish website that was displaying two portraits of actress Elizabeth Taylor – spokesperson for the perfume – that had originally been taken by Bernstein. You can almost hear the exasperation in the judicial voice: “…linking cannot constitute direct infringement because the computer server of the linking web-site does not copy or otherwise process the content of the linked-to site…”
TL;DR: You are not liable for a link to a link.
Circumvention Technology and Its Discontents
There’s another thing the DMCA hates just as much as the public display of content that infringes copyright protection, and that’s technology that encourages the infringement of copyright protection. Distributing circumvention technology is a Big Bad in the eyes of the courts.
But what if you merely link to a site that distributes circumvention technology?
This is another situation where the courts have tightened their lenient views on linking.
DeCSS Linking to Copyrighted Material Scandal
In 1999, a plucky Norwegian teenager created a software program called DeCSS, which effectively circumvented the encryption technology movie studios were then using to prevent unauthorized copying of their film DVDs. A number of websites promptly put the software up online, among them 2600.com, the online extension of the magazine, 2600: The Hacker Quarterly. The DVD Copy Control Association, filed a complaint in Superior Court of California, County of Santa Clara; a preliminary injunction was granted.
2600.com took the software down, but in an act of what they termed “electronic civil disobedience” continued to provide their users with links to other sites that still hosted DeCSS. They were seeking nothing less than to have the DMCA declared unconstitutional.
In the subsequent 2000 court case, Universal City Studios, Inc. v. Reimerdes, the 89-page ruling found that the defendants had violated the DMCA on two grounds – both by hosting the circumvention technology on the 2600.com website and by linking to it when it was hosted on other sites.
Lest they open a big can of linking worms, however, the Court provided some caveats. In order to be held liable under the DMCA, the linkers would have to know that the offending technology could be downloaded at the linked-to site. The link would have to be maintained for the sole purpose of disseminating the offending technology; and the linkers would have to know the offending technology was not legal.
As to the constitutionality of the DMCA itself, the Court concluded:
“In our society, however, clashes of competing interests… are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs’ favor. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment.”
For more information about linking to copyrighted material or copyright law on the Internet, contact an attorney.