“Is it legal to link to unauthorized copyrighted material?” It’s a question we hear often. Below, we’ll get to some answers.
Deeps Links To 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 Ford Motor Company v. 2600 Enterprises, 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 f**kgeneralmotors.com maintained by 2600 Enterprises. Ford had brought trademark dilution actions, trademark infringement, and unfair competition charges under the Lanham Act.
The court ruled:
“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 provided a deep link into Ticketmaster’s website, to help customers acquire tickets when tickets.com couldn’t assist. 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 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 the great online ticket selling battle, no US court has ruled that a deep link infringes either copyright or trademark protections unless such links constituted circumvention technology or contributory copyright infringement. (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 displaying the content of one website directly on another site. The most common — and legal — type of inline linking is embedded YouTube videos.
Perfect 10, Inc. v. Google, Inc.
Perfect 10, Inc. v. Google, Inc. is a seminal linking lawsuit. In 2001, men’s magazine Perfect 10 (P10) began sending desist notices to Google, on the grounds that Google’s image indexing technology violated copyrights. P10 also objected to the search engine’s use of thumbnails to enhance the search process.
In 2004, P10 filed an intellectual property lawsuit; the company also sought an injunction that compelled Google to stop linking to P10’s images. In an initial ruling, a California court asserted that though the thumbnails might be considered infringement, Google’s links to the materials were not. The Court did not order Google to take down the thumbnails.
A year later, the U.S. Court of Appeals for the Ninth Circuit based in San Francisco apologetically reasoned:
“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 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 will expose you legally…with a few exceptions (keep reading).
Is it Legal To ‘Frame’ Other People’s Content On My Website?
Framing is a practice that uses HTML to showcase content from other sites.
Washington Post v TotalNews
In the late 1990s, a company called TotalNews created a portal that didn’t just link to headlines — á la the Drudge Report — but instead frame-displayed the entire homepages of highly trafficked online media outlets, like the Washington Post, CNN, CBS, NPR, and others. Advertising, which benefited TotalNews, clung to margins around the content.
The Washington Post and several other outlets 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.
Framing might be viewed more problematically when it comes to trademark infringement, since viewers could easily come away with the impression that all the material on the framing website belongs to the website creator.
Contributory Copyright Infringement
You run across a Web page where someone has uploaded an iPod playlist, complete with mp3s. “Wow,” you think, “some great music here!”
Question: Can you run into legal difficulties by sharing the treasure link with friends?
Answer: Yes, if the person with the online playlist is hosting those mp3s illegally.
The 1998 Digital Millennium Copyright Act (DMCA) explicitly extended copyright protection laws to cyberspace. But the law’s main purpose isn’t to lock up copyright infringers, but rather to remove offending content from public display. Website liability is intentionally limited under the terms of the law, since tracking down offenders is often a time consuming process.
The DMCA also offers an out: if you didn’t know that the website to which you linked was hosting infringing content, and you remove your link promptly upon receipt of a DMCA takedown notice, then you’re home and dry, free of liability.
What if you don’t link to the website hosting the playlist itself, but 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 over an online 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
The DMCA also includes sections about IP infringement technology — programs and hardware specifically created to circumvent copyrights and trademarks.
So, what happens if you 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 circumvented the encryption technology movie studios were (then) using to prevent unauthorized DVD duplication. 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 judge granted a preliminary injunction.
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. Essentially, through its actions, the group was trying 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 giant can of linking worms, the Court provided some caveats. In order to be held liable under the DMCA for linking to infringing technology:
- The site in question must make it clear that the offending technology could be downloaded at the linked-to site. In other words, to apply the DMCA in such circumstances, the link would has to be maintained for the sole purpose of disseminating offending technology; and
- Linkers have to know the offending technology is 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.