Copyright & Web Links

“… hyperlinking does not itself involve a violation of the Copyright Act … since no copying is involved.”
Ticketmaster Corp. v. Tickets.Com, 2000.

Linking to other websites is one of the most useful abilities of the Internet, indeed it was the underlying purpose of the World Wide Web. You can quickly hop from one site to another, chasing down the information you’re looking for. But do those links infringe copyright? Good question, let’s take a look.

“Like other aspects of media, the law relating to links from one website to another is not entirely settled. Generally, however, you should not have a problem if you simply post a link to another site, even if that site contains copyrighted material. In such a case, you are not publishing the material; you are simply pointing the way to someone else’s publication.”
— Harvard University, Office of the General Counsel

General Links

The hyperlink

The basic link on the World Wide Web is known as a “hyperlink” and is coded like this:

<a href="http://www.photosecrets.com">PhotoSecrets</a>

What we have here is code + web address + website title.

All three parts are statements of fact, devoid of any originality (there is no other way to express them), and U.S. copyright law does not allow unoriginal facts to be copyrighted:

“Copyright protection subsists [only] … in original works of authorship …”
USC Title 17, §102(a)

“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery …”
USC Title 17, §102(b)

“… facts are not copyrightable.”
Supreme Court of the United States, Feist v. Rural Telephone, 1991

Thus, the basic hyperlink itself has no copyright liability.

“… hyperlinking per se does not constitute direct copyright infringement because there is no copying.”
Online Policy Group v. Diebold, Inc., 2004.

Text Links

Text Links: Simple

The content of a link can be an issue. For a basic text link, as long as you keep the text succinct, relevant and descriptive, then you should be OK.

“You do not need permission for a regular word link to another website’s home page.”
Stanford University, Connecting to Other Websites

Court rulings on Text Links
FOR:Feist v. Rural Telephone, 1991Factual listings have no originality and thus no copyright
Bernstein v. J.C. Penney, 1998“[mere] linking cannot constitute direct infringement”
Tickmaster Corp. v. Tickets.com, 2000Dismissed
Washington Post v. Total News, 1997Settled
British Telecom v. Prodigy, 2002BT did not have a patent on web hyperlinks
Karin Spaink, Netherlands, 2003convicted of linking, overturned
Josephine Ho, Taiwanacquitted of “hyperlinks that corrupt traditional values”

“… 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”
— Bernstein v. J.C. Penny, 1998

Text Links: Framing

Also known as iframes

Framing is a way for webmasters to make a section of someone else’s website appear on their website. It is a window (a frame) into the other site which, if presented with no border or explanation, can look like a seamless part of the website.

Framing used to be popular in the early days of the Web, but is rarely used now as it can impact search rankings, load time, layout, and is open to legal problems.

Including someone else’s content without authorization or disclosure can be a form of appropriation and copyright infringement.

Court rulings on Framing
FOR:Perfect 10, Inc. v. Amazon.com, Inc., 2007
AGAINST:Futuredontics Inc. v. Applied Anagramic Inc., 1998Copyright infringement
Washington Post v. Total News, 1997Settled
The Shetland Times v. The Shetland News, Scotland, 1996Settled

AVOID:

  • Displaying a frame that may confuse the user on the source of the text
  • Being deceptive
  • Modifying the content without authorization
  • Inferring an affiliation between your site and the origin site, or the source of a product or service
  • Using frames altogether

Image Links

Image Links: Thumbnails

Using small images from the original site to represent that site is generally OK.

Court rulings on Thumbnails
FOR:Kelly v. Arriba Soft Corp., 2003Allowed as fair use
Perfect 10, Inc. v. Amazon.com, Inc., 2007Allowed as fair use

I have not been able to find case law on thumbnails of web pages.

Full-size images

Using a full-size image as a link can be copyright infringement of the photographer’s rights.

Full-size image via inline linking

Also known as inlining, hotlinking, leeching, piggy-backing, direct linking, offsite image grabs, bandwidth theft, mirroring

Inlining shows an image that is hosted on another site.

Court rulings on Inlining
FOR:Perfect 10, Inc. v. Amazon.com, Inc., 2007
UNDECIDEDKelly v. Arriba Soft Corp., 2003Lower court found copyright infringement, appeals court did not, but no final ruling made

“in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, [but] the Copyright Act … does not protect a copyright holder against acts that cause consumer confusion.”
Perfect 10, Inc. v. Amazon.com, Inc., 2007

“in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, [but] the Copyright Act … does not protect a copyright holder against acts that cause consumer confusion.”
Perfect 10, Inc. v. Amazon.com, Inc., 2007, U.S. Ninth Circuit, the first appeals court to specifically address the copyright status of linking

Google does not … display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen.

Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any ‘material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated’ and thus cannot communicate a copy.

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.

Google may facilitate the user’s access to infringing images. However, such assistance raised only contributory liability issues and does not constitute direct infringement of the copyright owner’s display rights. …

While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act … does not protect a copyright holder against [such] acts ….”

Perfect 10, Inc. v. Amazon.com, Inc., 2007

Complaints

What if a website owner objects to a link?

The act of linking can be considered to be free speech, protected by the First Amendment.

“No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.”
ACLU v. Reno, 1996

Against this, there does not seem to be a law that gives a linkee any rights to prevent being linked to.

Linking when Site Owner Objects
FOR:Ford Motor Company v. 2600 Enterprises, 2001
American Civil Liberties Union v. Miller, 1997
Ticketmaster Corp. v. Tickets.Com, Inc., 2000
Home A/S v. Ofir A-S, Denmark, 2006
AGAINST:SFX Motor Sports Inc., v. Davis, 2006

Breach of terms and conditions of a website

Just because a website owner states in the terms and conditions that links are not allowed, does not prevent links being added.

“It cannot be said that merely putting the terms and conditions [at the bottom of the home page] necessarily creates a contract with any one using the web site. [Plaintiff must show evidence of defendant’s] knowledge of them plus facts showing implied agreement to them.”
Ticketmaster Corp. v. Tickets.com, Inc., 2000.

“In the U.S., [a statement against linking which is not a signed agreement] does not bar an independent person from so linking without the owner’s permission.”
Wikipedia, Hyperlink

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.”
Ford Motor Company v. 2600 Enterprises, 2001

Site owners can opt-out of search-engine indexing using the Robots Exclusion Standard (robots.txt file).

Links to illegal content

If copyright infringement is alleged, then a site owner can submit a DMCA Takedown Notice.

Section 512 of the DMCA shields site owners from a link to infringing content if they were unaware of the infringement and promptly remove the link upon notification, a so-called “DMCA Takedown Notice.”

“A service provider shall not be liable for monetary relief … for infringement of copyright by reason of … providing connections … if … the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement …”
DMCA §512

Case Law for Linking to Illegal Content
Intellectual Reserve v. Utah Lighthouse Ministry, 1999
Universal City Studios Inc v Reimerdes, 2000
Comcast of Illinois X LLC v. Hightech Elec. Inc., 2004

Deep Linking

There have been some issues when the hypertext links to, not the home page, but a sub-page within a site. This is called deep linking.

“On the World Wide Web, deep linking is making a hyperlink that points to a specific page or image on a website, instead of that website’s main or home page.”
Wikipedia, Deep Linking

Court rulings on Deep Linking
FOR:Ticketmaster Corp. v. Tickets.Com, Inc., 2000
Kelly v. Arriba Soft Corporation, 2003
Holtzbrinck v. Paperboy, Germany, 2003
AGAINST:Denmark, 2002
Bixee.com v. naukri.com, India, 2006
Denmark, 2006
SFX Motor Sports Inc., v. Davis, 2006

In 2006, a court in Denmark ruled “that one, when publishing information on the Internet, must assume—and accept—that search engines deep link to individual pages of one’s website.”

“A sensible use of the immense wealth of information offered by the world wide web is practically impossible without drawing on the search engines and their hyperlink services (especially deep links).”
German Federal Supreme Court, 2003

“The customer is automatically transferred to the particular genuine webpage of the original author. 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.”
Ticketmaster Corp. v. Tickets.Com, Inc., 2000

Implied consent

The argument for hyperlinks

An argument could be made that, since the purpose of the World Wide Web is to link sites together, then, by choosing to be on the Web, every site owner has implicitly permitted others to link to their site.

The language of the Web is HTML (HyperText Markup Language) and the transmission protocol is HTTP (HyperText Transfer Protocol). In both cases, the first two letters stand for “hypertext” which is method of linking sites with text.

“Hypertext is the underlying concept defining the structure of the World Wide Web. … Hypertext is text displayed on a computer or other electronic device with references (hyperlinks) to other text that the reader can immediately access… ”
Wikipedia, Hypertext

Hyperlink: an electronic link providing direct access from one distinctively marked place in a hypertext or hypermedia document to another in the same or a different document.”
Merriam-Webster, Hyperlink

“In general, if someone is making a website publicly available, others may freely link to it. That open linking is what makes the web a ‘web.’”
— ChillingEffects.org

Microsoft made this argument in Ticketmaster v. Microsoft, 1997, but the case was settled before getting a court ruling.

Additionally, many sites welcome links, as that drives traffic to their businesses and improves their search ranking. Indeed, I do, so please add a link to this page!

<a href="http://www.photosecrets.com/copyright-web-links">Copyright and Web Links, by PhotoSecrets</a>

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