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Does Sharing A Link To Online Content Amount To Copyright Infringement?
Above the Law ^ | 11/2/17 | Krista L Cox

Posted on 11/02/2017 11:13:22 AM PDT by markomalley

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.

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.

TOPICS: Chit/Chat; Computers/Internet
KEYWORDS: copyright; gettyimages; interwebs
Sometimes it's good to see that FR is not the only place that has to deal with copyright trolls.
1 posted on 11/02/2017 11:13:22 AM PDT by markomalley
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To: markomalley

If links did not exist, it would be necessary to invent them.

2 posted on 11/02/2017 11:19:56 AM PDT by E. Pluribus Unum (<img src="" width=800>)
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To: markomalley

How else are you gonna find your way around the interweb?

3 posted on 11/02/2017 11:21:39 AM PDT by Delta 21 (Build The Wall !! Jail The Cankle !!)
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To: markomalley

Is the paperboy guilty of libel along with the newspaper he delivers?

4 posted on 11/02/2017 11:21:45 AM PDT by Genoa (Luke 12:2)
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To: markomalley
If an article is on-line, and you provide a link to it - the link per se is not infringement. I would also argue that a limited excerpt is fair use under copyright law as you are reporting on the article or website. FYI, I am an IP attorney
5 posted on 11/02/2017 11:24:24 AM PDT by Smedley (It's a sad day for American capitalism when a man can't fly a midget on a kite over Central Park)
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To: markomalley
"Does Sharing A Link To Online Content Amount To Copyright Infringement?"

Misleading headline. What is actually discussed is posting text or photos online with a 'hidden' hyper-link back to the original.

Such as:

6 posted on 11/02/2017 11:24:36 AM PDT by TexasGator (Z)
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To: Genoa


The WHAT!?!?!?

7 posted on 11/02/2017 11:25:16 AM PDT by G Larry (There is no great virtue in bargaining with the Devil)
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To: markomalley

A refresher on the origins of copyright in English Law.

The origin of copyright law in most European countries lies in efforts by the church and governments to regulate and control the output of printers.[6] Before the invention of the printing press, a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying by scribes. An elaborate system of censorship and control over scribes did not exist, as scribes were scattered and worked on single manuscripts.[7] Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture).[6] In 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time.[7]

8 posted on 11/02/2017 11:26:14 AM PDT by abb ("News reporting is too important to be left to the journalists." Walter Abbott (1950 -))
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To: G Larry

Excuse me. The newspaper delivery technician.

9 posted on 11/02/2017 11:26:37 AM PDT by Genoa (Luke 12:2)
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To: markomalley

Links generate web traffic. Most websites have a link you can use to share an article to Twitter, Facebook, Redit, etc. etc.

Has Drudge ever been successfully sued for copyright infringement?

10 posted on 11/02/2017 11:37:56 AM PDT by smokingfrog ( sleep with one eye open (<o> ---)
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To: TexasGator
What is actually discussed is posting text or photos online with a 'hidden' hyper-link back to the original.

Since yours doesn't...hyper-link back to the original, that is...I think you might have missed an html tag to produce this:

11 posted on 11/02/2017 11:53:21 AM PDT by Bloody Sam Roberts ("Good judgment comes from experience, and a lot of that comes from bad judgment." - Will Rogers)
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To: markomalley

Already been litigated by a fraud IP firm in Nevada, who is no longer in business....

12 posted on 11/02/2017 11:53:43 AM PDT by Vendome (I've Gotta Be Me -
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To: markomalley

It sounds like they have hot linking an image confused with simply providing a link. The latter is no different than saying to someone: “Hey, did you see this arricle in the Times?”

13 posted on 11/02/2017 12:08:57 PM PDT by bk1000 (I stand with Trump.)
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To: bk1000

If I am a creator with content on the web, don’t I WANT people to see it? Links provide “word-of-mouth” publicity.

I am a craftsperson with products for sale and an author with novels on Amazon. Please, please share links to my work!! Post my work on Pinterest!

Thank you!

14 posted on 11/02/2017 12:51:23 PM PDT by reformedliberal
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To: markomalley

Can I copyright my street address, too, then?

15 posted on 11/02/2017 12:57:46 PM PDT by Defiant (It's not antifa, it's actually antifafa. Antifa Fascists.)
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To: Genoa

Information logistics transmission technician.

16 posted on 11/02/2017 1:01:18 PM PDT by Rebelbase (There are only two genders. The rest are mental disorders.)
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To: markomalley

They don’t want us to link because they don’t want us to share ideas unless they approve. Big Brother.

Besides, there’s money out there that they haven’t robbed from our pockets yet.

Bunch of greedy, self-righteous, power-mad progressives. Standard operating procedure.

17 posted on 11/02/2017 1:53:11 PM PDT by TBP (Progressives lack compassion and tolerance. Their self-aggrandizement is all that matters.)
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To: markomalley
Photos, IMO, are a stickier issue because you can't really share an excerpt of a photo like you can excerpt written content. The photo *is* the photographer's work.

IMO, anything that goes out on the net is fair game. You can't unring a bell. That's why I don't belong to sites like Facebook.

18 posted on 11/02/2017 1:55:25 PM PDT by OrangeHoof (Let Trump Be Trump. Would you rather have Hillary?)
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To: Smedley
With a few different changes in the law back in the 30’s, television stations would be paying us when they broadcast their content.

For written words, a devious lawyer might craft a law that requires the author to pay anyone that spreads the original art, much like a micropayment for a click. A new twist on G**gle Analytics that the troll industry could use?

Music has been ruled that the author (or owner of the material) should be paid for fair commercial and private use. One cannot just rip a song of the web and use it as though they had paid for the material.

Getty Images spends a ton of money to protect its copyrights. Would this create a situation where media companies would be beholden to pay these image libraries for every click or reposting?

Or the general public? Nuts.

19 posted on 11/02/2017 2:36:45 PM PDT by texas booster (Join FreeRepublic's Folding@Home team (Team # 36120) Cure Alzheimer's!)
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