Intellectual Property

Does Sharing A Link To Online Content Amount To Copyright Infringement?

This would destroy the way we communicate today, including interactions on social media platforms -- and you can thank Tom Brady for it.

By  
on

Here’s one more thing you can blame Tom Brady for. (Photo by Andrew Burton/Getty Images)

Providing a link to content is a pretty standard way of pointing your friends, family, or colleagues to an interesting article you read, a funny picture you saw, or information you want to share. I know that I provide links on a daily basis, including them in blog posts, emails, articles, and briefs, or on Facebook and Twitter. While I assume that the material I share does not infringe copyright, to be honest, I typically don’t give it much thought when I share an interesting blog post or a stunning picture by providing the link to the page I originally found the content. Hyperlinking is simply a typical way the average person interacts with the internet today.

But what if it wasn’t allowed? Or what if every time you provided a link, you had to worry that you might be sued for copyright infringement? This idea isn’t as crazy as it seems given the positions of some rightholders, but it would destroy the way we communicate today, including interactions on social media platforms.

In the United States, courts have repeatedly held that the person who puts infringing content online — a photograph, a movie, a song — is the one liable for copyright infringement. Internet service providers benefit from safe harbors provided they meet the conditions set forth in the Digital Millennium Copyright Act. Individuals who encounter the content are similarly exempted from copyright infringement claims, including the mere provision of a link.

As a matter of public policy, this result makes good sense given that in many cases, the question of infringement may not be clear and the individual who comes across the content online may have no idea of its copyright status. That user also presumably has no control over the hosted content.

The most recent fight over hyperlinking comes from Justin Goldman, working with Getty Images, to sue several news publications for copyright infringement for articles that embedded a tweet that included a photo of the New England Patriots quarterback Tom Brady. Goldman took the photo of Brady and several third parties tweeted it (I could only find one tweet that still has the photo; other accounts have deleted the tweet or the tweet no longer includes the image); that link was then embedded into the articles on several sites including the Boston Herald and Yahoo Sports. Goldman and Getty Images then sued these news outlets for copyright infringement.

While Goldman certainly has a right to request takedown of online material if it is found to infringe his copyright, the fact that news outlets who embed tweets (never mind the fact that the tweets themselves may be a fair use of the photo) might be liable for huge penalties including statutory damages under copyright law poses serious risks to social media, journalism, and freedom of expression in the digital age. For example, could the Washington Post be sued for copyright infringement by President Trump if it embeds tweets by Trump — as it often does — in its news reporting? The answer may be yes (though a court may find such use to be a fair use) if Goldman and Getty Images win their arguments before the court.

Sponsored

The legal fight over hyperlinking isn’t limited to the United States, either. Rightholders have argued in favor of imposing liability for providing links online in the European Union, as well.

Last year, the Court of Justice of the European Union (CJEU) ruled that posting links to copyrighted materials in a for-profit scenario may infringe copyright even if the user linking the material is not the one hosting or uploading the copyrighted material. The decision — which also involves links to photographs — suggests that a person providing a link in a for-profit context has an obligation to determine that the material on the third-party website does not infringe copyright. Indeed, the subheading for the decision reads: “if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.” The court goes on to clarify that “when hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published . . . the act of posting a clickable link to a work illegally published on the internet” results in liability. This opinion suggests that there is a positive obligation to review the content and determine whether the content hosted on the linked site infringes copyright.

Requiring a determination regarding whether the content hosted on a third-party site is copyright infringement represents an extraordinary departure — whether in the for-profit or not-for-profit context, as those lines are often blurred today — from how most people use and communicate with others on the internet. Is the average person equipped to make an accurate copyright determination? Are most people aware of the contours of fair use?

What about a search engine site like Google, Bing, or Yahoo!? These are for-profit corporations — though they provide free services to the public — that run massive search engines, which include hyperlinks to content hosted on the internet. It would be impossible to screen every site that is crawled and ingested to the search engine to determine whether there is any infringing content therein, particularly given the rise of user-generated content.

Allowing rightholders to pursue copyright infringement action against those providing hyperlinks instead of just those individuals who actually post the infringing content would greatly threaten how the internet has evolved into a giant communication and information sharing technology. Instead of pursuing action to simply remove infringing content through takedown processes, rightholders may have an incentive to go after deeper pockets like news outlets or major technology companies. Hopefully the courts will come to their senses and protect the delicate balance between preserving the rights of rightholders and encouraging freedom of speech and innovation.

Sponsored

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

Topics

, , , , , , ,