Can Your Business be Liable for Posting a Link to Copyrighted Material?
Many types of businesses, namely those who operate blogs or otherwise deal in information, send links and post to copyrighted material. Many of these businesses are aware that merely posting a link to copyrighted material is not direct infringement of the copyright in that content; indeed, many of these businesses make a living off the advertising on their pages, which pages essentially offer as their only value a link to copyrighted material. This article is an attempt to identify the limits of the rule that posting a link to copyrighted material is not direct infringement, and to help indicate where pitfalls may lay.
The General Rule
A federal court in New York recently held that sending an email with hyperlinks to copyright-infringing content, without more, is insufficient to establish an act of infringement. In Pearson Education, Inc. et al. v. Ishayev & Leykina, the plaintiff, a publisher of print materials, alleged defendants violated the Copyright Act, 17 U.S.C. §§ 501 et seq. and willfully infringed their copyrights when defendants emailed customers hyperlinks to copyrighted material stored on defendant’s cloud storage server.
The court reasoned a hyperlink does not itself contain any substantive content. Instead “[a] hyperlink . . . is the digital equivalent of giving the recipient driving directions to another website on the Internet. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner’s five exclusive rights under 17 U.S.C. § 106.“
This is significant because posting a hyperlink on your blog, website, etc. is not itself copyright infringement, because a hyperlink does not contain any content– no content, no infringement.
Compare three other related methods of infringement:
Is a seller who e-mailed to purchasers files containing digital copies of copyrighted materials without the owners’ consent liable for copyright infringement?
Is a seller who e-mailed to purchasers hyperlinks to files containing digital copies of copyrighted materials the seller herself uploaded to a cloud-based storage server without the owners’ consent liable for copyright infringement?
Yes. Following the same logic as emailing files containing digital copies, this would be distribution under 17 U.S.C. § 106(3).
Is a seller who e-mailed to purchasers hyperlinks to files containing digital copies of copyrighted materials without the owners’ consent liable for copyright infringement under the theory of contributory or vicarious infringement?
Yes. While the Copyright Act does not expressly create liability for contributory infringement, one who knowingly induces, causes, or materially contributes to the infringement may be held liable for contributory or vicarious infringement.
The issue of contributory infringement was more notably litigated in the aftermath of the internet leak of Quentin Tarantino’s script for the film The Hateful Eight. Following the script being leaked to the internet, Tarantino decided to cancel the making of the movie and sued Gawker for its “role” in the leak.
Gawker published an article entitled “Here Is the Leaked Quentin Tarantino Hateful Eight Script,” and reported that, “a document that appears to be the script has been made public online.” While Gawker did not post or publish the screenplay, it did include hyperlinks to AnonFiles.com and Scribd.com where the screenplay already had been published.
Gawker filed a motion to dismiss based on the premise that it had only provided a link to the offending material and was not contributing to the infringement. Ultimately, the court granted Gawker’s motion to dismiss because Tarantino’s complaint failed to allege a single act of direct infringement committed by any member of the general public. In other words, the complaint did not allege that any person used the hyperlink to create an unauthorized copy of the script. Rather, Tarantino’s theory was that, given access to the script, someone must have made a copy. However, because of the complaint’s lack of specificity, we can infer there is no evidence of how many copies were made and by whom (at least at the time of this writing). Without an explicitly identified instance of direct infringement, Gawker could not have “induced, caused or materially contributed” to infringing activity.
In conclusion, merely posting a link to copyrighted material is not direct infringement of the copyright in that content, so long as it does not contribute to the direct copyright infringement of another. While this will give some businesses comfort, all businesses should be careful dealing in copyrighted information (which is to say, all information).
If you’d like to learn more about copyrights or ways to protect your intellectual property, please feel free to contact us for your free consultation.