Linking to Copyrighted Content: Not a Foolproof Way of Avoiding Infringement Liability

There is a common misperception that “linking” to copyrighted content on other webpages, instead of simply copying and pasting an image, for example, is a foolproof way of avoiding liability for copyright infringement. However, students, internet users, and startups without experience in the field of copyright should be aware that this is not always true.

The Berkman Center for Internet and Society’s Digital Media Law Project splits the practice of “linking” into two categories — “deep linking” and “inline linking.” “Deep linking” refers to “placing a link on your site that leads to a particular page within another site (i.e., other than its home page).” The ABA’s Intellectual Property Litigation states that “a majority of courts have agreed that merely linking to another site (whether in the form of a simple link to another website’s homepage or a deep link to a specific page on another website) does not constitute copyright infringement.” The ABA bases this conclusion on the clear statement made by the Federal District Court for the Central District of California in Ticketmaster v. Tickets.com that “hyperlinking does not itself involve a direct violation of the Copyright Act (whatever it may do for other claims) since no copying is involved.” The Electronic Frontier Foundation’s Internet Law Treatise also cites Arista Records, Inc. v. MP3Board, Inc. (holding that linking to content does not implicate distribution rights and thus, does not give rise to liability for direct copyright infringement), and Online Policy Group v. Diebold, Inc. (holding that “hyperlinking per se does not constitute direct copyright infringement because there is no copying”) to support the conclusion that mere linking does not violate the Copyright Act.

The Berkman Center defines “inline linking” as “placing a line of HTML on your site so that your webpage displays content directly from another site” commonly referred to as “embedding.” The Berkman Center relies on Perfect 10. v. Google in concluding that “while there is some uncertainty on this point, the Ninth Circuit concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material.” Rightfully so, the Berkman Center cautions that other courts may or may not follow this reasoning.

If you are feeling that the above analysis seems unsettlingly inconclusive, your uneasiness is well warranted. The Berkman Center points out that there still may be liability for linking: when either 1) the linking is to infringing works, or 2) the linking is to circumventing technology proscribed by the Digital Millennium Copyright Act (DMCA). The first circumstance arises when you knowingly link to works that clearly infringe someone’s copyright, “such as pirated music files or video clips of commercially distributed movies and music videos.” Such linking may give rise to a specific kind of secondary liability called “inducement,” which occurs by “intentionally inducing or encouraging direct infringement.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., (holding that one who distributed a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties). The Berkman Center instructs that “as long as you do not know that a work infringes someone’s copyright, then you cannot be held liable for contributory infringement for directing users to that work.” However, “on the other hand, it is not necessarily safe to simply claim that you ‘didn’t know’ when the circumstances make it clear the material you link to is infringing.” The Berkman Center also suggests that you may be able to avoid liability in these circumstances by following the notice and take down procedures of the DMCA.

The second circumstance pertains to §1201 of the DMCA, which makes it illegal to traffic in technology that enables others to circumvent technological measures put in place by copyright holders to control access to or uses of their copyrighted works. Trafficking is defined as “making, selling, giving away, or otherwise offering” these devices or tools to the public. Simply posting such tools to your website (which can consist of merely reposting a combination of numbers and letters that you know represent a circumventing code) or linking to other websites that host them qualifies as trafficking, as described in Universal City Studios, Inc. v. Corley, (holding that hosting and linking to the DeCSS code, which allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs, violated the DMCA’s anti-trafficking provisions, and this application of the DMCA did not violate the First Amendment).

In light of this analysis, it is clear that simply linking to copyrighted content on other webpages, instead of copying that content directly onto your webpage, is not a foolproof way of avoiding liability for copyright infringement. An experienced copyright attorney, or established company with in-house counsel, will likely be sufficiently knowledgeable and savvy to recognize, and avoid linking to, content from webpages that is clearly infringing or has circumventing instructions in violation of the DMCA. However, students, internet users, and startups who are not as savvy, or do not have in-house counsel, may be happy to knowingly deep link or inline link to a clearly infringing photograph, video, or song, and thus should be on notice that such behavior may subject them to copyright infringement liability.