Academy Award winning director, screenwriter and producer
Quentin Tarantino has filed a copyright action in the U.S. District
Court of Los Angeles against Gawker Media for facilitating the
dissemination of the unproduced script for his film The Hateful
Eight. As the media outlet that attempted to purchase the video of
Toronto Mayor Rob Ford allegedly smoking crack, Gawker is no
stranger to controversy.
The lawsuit alleges Gawker "made a business of predatory
journalism" by posting multiple links to the entire script on
its blog, the Defamer. Further, according to Tarantino's claim,
Gawker encouraged users to download the copyrighted content with
the cheery invitation to "Enjoy!" and has refused to
remove the posted URL links.
The law in the United States currently does not recognize
hyperlinking itself as a form of copyright infringement. In Perason
Educ., Inc.v. Ishayen, 2013 WL 3948505 the United States Federal
Court held that merely providing a link to a copyrighted content is
not direct infringement of the copyright in that content. The court
A hyperlink (or HTML instructions directing an internet user
to a particular website) is the digital equivalent of giving the
recipient driving directions to another website on the internet. A
hyperlink does not itself contain any substantive content; in that
important sense, a hyperlink differs from a zip file. 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 [Section 106 of
the Copyright Act].
However, Tarantino's claim asserts that Gawker has gone well
beyond merely providing a link to the copyrighted work and is
itself contributing to the infringement. Contributory copyright
infringment can be found on the part of someone who is not directly
infringing but nevertheless is making contributions to the
infringing acts of others. Tarantino alleges that Gawker is
materially contributing to copyright infringement by knowingly
providing links to third party sites where users can access his
content which Gawker knew had been leaked without his permission.
To succeed on contributory infringement, Tarantino must show that
the webmaster or service provider actually knew or should have
known of the infringing activity.
Contributory infringement has often been claimed against file
sharing sites and search engines which exist as directories of
others' content. Although it has yet to file a Defence,
Gawker has publically stated that it is a news site and publication
of the link was connected to informing its readership of a matter
of public interest – the earlier leak of The Hateful
Eight, Tarentino's public complaints about the leak and
the resultant public discourse.
Although there are no decided cases on copyright hyperlinking in
Canada, the Supreme Court of Canada has refused to find that a bare
hyperlink to defamatory content constitutes "publication"
for purposes of a defamation claim, absent any statement endorsing
the truth of its contents (Crookes v. Newton, 2011 SCC
47). The Court's conclusion echoes the roadmap analogy
used in the United States:
Hyperlinks are, in essence, references, which are
fundamentally different from other acts of "publication".
Hyperlinks and references both communicate that something exists,
but do not, by themselves, communicate its content. They both
require some act on the part of a third party before he or she
gains access to the content. The fact that access to that content
is far easier with hyperlinks than with footnotes does not change
the reality that a hyperlink, by itself, is content-neutral.
Furthermore, inserting a hyperlink into a text gives the author no
control over the content in the secondary article to which he or
she has linked.
In sharp contrast, the Federal Court of Australia has
deviated from the approach in North America in Cooper v.
Universal Music Australia Pty. Ltd.  FCAFC 187.
There the court found the defendant guilty of
"authorizing" copyright infringement by embedding
hyperlinks on his website to remote 3rd party sites
which users could use to have music transmitted directly to their
This highly publicized case may well yield some interesting law
about how much editorial content moves a a content-neutral bare
link along the continuum to contributory infringement. Gawker
may also have to defend itself as a news site which will test the
boundary of what constitutes "news reporting" and whether
what it did was "fair". Both the U.S. and Canada
have a fair use (or fair dealing) exemption for news reporting so
this case will, no doubt, be watched from both sides of the
border. And, whatever the outcome, it's all publicity if
The Hateful Eight ever does make it to screen.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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