United States: Is Hyperlinking Copyright Infringement? EU vs. US

Over in Europe, the Court of Justice of the European Union (CJEU) has recently been hyperactive in the area of hyperlinking and copyright, at least as compared with the United States. The CJEU issued a much-anticipated ruling in September concerning hyperlinking's legality in GS Media v Sanoma Media Netherlands and Others (C-160/15). It held that posting a hyperlink to a site where a copyrighted work is being displayed without the copyright owner's consent does not necessarily violate the copyright owner's right to authorize or prohibit any "communication to the public" under the relevant European directive (EU Directive on copyright and related rights in the information society 2001/29/EC, or the "InfoSoc Directive"). Rather, a person posting such a hyperlink makes only a "communication to the public" where that person has knowledge that the site to which it linked did not have permission to display the copyrighted work. If the hyperlink was posted for "financial gain," the court will presume the person posting the link knew this fact. The presumption is then rebuttable by the one posting the link.

While the decision acknowledges that the internet is "of particular importance to freedom of expression and of information" and that "hyperlinks contribute to its sound operation and to the exchange of opinions and information," it has been criticized for nothing short of potentially disrupting the flow of information over the internet as we know it. Critics deduce that many or most websites could fall into the category of linking for "financial gain" and therefore will be presumed to know they linked to a site with unauthorized content simply by placing a hyperlink.

The GS Media decision came after two 2014 CJEU decisions had already muddied the answer to the question whether hyperlinking is a "communication to the public." Svensson v Retriever Sverige AB (C-466/12) and BestWater International (C-348/13) allowed linking to works freely available over the internet, but not ones, for example, behind a paywall. This was accomplished by the following reasoning: hyperlinking is a "communication to the public" for purposes of the InfoSoc Directive, but not where the works are originally freely available online because the hyperlink does not, then, communicate to a "new public." BestWater extended this reasoning to cases where the link is accomplished by "framing" or access through a small frame of the linked-to site.

An Advocate General (AG) opinion in advance of the GS Media decision broadly suggested that linking should be considered outside of the scope of copyright and not a "communication to the public." In GS Media, the CJEU chose not to follow the AG opinion, nor did it follow the reasoning in Svensson, which had led copyright holders to conclude that limiting access to their online works affects whether someone can link to them.

The context of the GS Media case might be helpful in understanding the CJEU's decision. GS Media operates a Dutch site providing "news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense" called GeenStijl. GeenStijl received information about an Australian website where pictures of a Dutch celebrity could be downloaded—pictures that had been slated to be published in Playboy. When Sanoma, the publisher of Playboy, asked GS Media to prevent the photos from being published on the GeenStijl website, GS Media instead included part of one of the pictures and a link to the Australian site where they could be downloaded. Sanoma asked GS Media to remove the link and material, and it removed only the picture. After the photos were removed from the Australian site, GeenStijl published another article linking to another site where the photos could be viewed. In other words, that GeenStijl understood that the photos were unauthorized was not a question for the court. Contrasting these facts with the situation where a website merely links to another without conducting diligence or asking for permission, there are many questions raised by this ruling about what a company need do in order to overcome a presumption that it had knowledge that the site to which it linked was infringing.

In the United States, rather than a "communication to the public," Section 106 of the Copyright Act grants copyright holders six rights, including public performance, public display, reproduction, and distribution. The public performance right is defined in Section 101 as "to transmit or otherwise communicate a performance ... of the work ... to the public ... whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times."

Under U.S. case law, the mere provision of a link—a connection between the source of the material and the viewer—without more does not give rise to a direct infringement claim. In 2007, the Ninth Circuit decided Perfect 10, Inc. v. Amazon.com, Inc. and considered the links that appear in a Google search. The court noted that "Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act ... and thus cannot communicate a copy."

In a 2012 Seventh Circuit decision FlavaWorks, Inc. v. Gunter, Judge Posner echoed this interpretation, stating:

To call the provision of contact information transmission or communication and thus make [defendant] myVidster a direct infringer would ... make the provider of such information an infringer even if he didn't know that the work to which he was directing a visitor to his website was copyrighted.

However, the same underlying concerns from GS Media—of a website earning a profit by encouraging infringing activity—have also concerned U.S. courts. If a link-er has knowledge of the infringing nature of material to which it linked, that fact is not ignored, but instead relevant to a claim of contributory infringement. But there is no presumption of knowledge. In the United States, a plaintiff must provide evidence that the link-er knew the material to which it linked was infringing. Without that evidence, or indeed any evidence that a link-er encouraged, assisted, or induced infringing activity, a plaintiff struggles to obtain even an injunction against the linking party.

These are the FlavaWorks facts. A website, myVidster, allowed its patrons to "bookmark" videos that were available over the internet on its site. MyVidster would then frame a link to the server that hosts the videos on its site. When users bookmarked videos that had been copied from FlavaWorks' site (whose videos were behind a paywall), FlavaWorks sued myVidster for contributory liability—or, as the case put it, being "an infringer's accomplice." FlavaWorks, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012). The court suggested that the plaintiff could eventually obtain evidence that myVidster invited or encouraged people to post copyrighted videos without authorization or "bookmark" them on its site, including evidence that myVidster made financial gains off the links. But it overturned the lower court's grant of a preliminary injunction against myVidster on the basis that there was no such evidence in the record at that time.

It seems the same concerns of knowledge, incentive, and intent are in the background of both the U.S. and EU approaches, although they have manifested themselves differently. As it stands, on account of the presumption, it is conceivable that posting a link may give rise to an infringement claim in the EU where it would not in the U.S. on the same facts. Whether the practical effect of GS Media leads to divergent methods of structuring websites or affixing links in different jurisdictions remains to be seen. We look forward to any further guidance, standards, or clarification of EU law on linking and infringement as well as its practical effect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions