United States: Potential Liabilities For Web-Linking To Copyrighted Content

In an age when a majority of information is shared electronically via the internet, it is increasingly important for curators of online content to be aware of the liabilities potentially incurred when a party links to content belonging to a third party without consent. Generally, a party is not liable for copyright infringement when including a link if the party does not know that the link is to an infringing work and the party is not attempting to circumvent technology proscribed by the Digital Millennium Copyright Act, which forms the legal framework for the management of rights in digital works.

However, the process known as inline linking may give rise to copyright infringement. Framing, another type of linking, may invoke liabilities for not only copyright infringement but also trademark infringement or dilution. It is also important to dissect content provider agreements of video-sharing platforms, such as YouTube, as well as any copyright or trademark licenses that the platforms provide its content providers to set for their content. In addition, a party may take various mitigating measures, which include forming linking agreements and posting disclaimers, to diminish copyright and trademark liability for their linked content.

I. INTRODUCTION

Without hyperlinks, embedded videos and framing, the World Wide Web would be a vast array of documents without any organization.

No immediate, identifiable connection between these documents would exist, causing each participant to seek out and relate the information independently. No longer would one be able to click from topic to topic, getting lost in the structured chaos of the internet. For some, the loss of web pages containing interactive elements would be even more concerning. For example, there would be no embedded videos, no rapid access to cited resources and no social media feeds.

However, for a third party, the use of links on the World Wide Web could prove to be troublesome. If a third party spent hours creating web content, shouldn't that third party be able to control who links to its content? Should it have the right to compensation? Stated another way, could including links belonging to a third party, without its consent, on your website constitute copyright infringement, trademark dilution or other possible causes of actions?

II. MOST COMMON APPROACH

In general, a party is not liable for any causes of actions for including a link belonging to a third party on its website. A web page is formatted and annotated using Hypertext Markup Language (HTML). Within this language are tags that allow content curators to place visual links inside of the content on a web page. Generally, content curators can do this in three ways by using: (1) a Hypertext Reference tag; (2) a source tag; or (3) an image tag. Both the href and source tags are commonly used to include external elements, such as images, audio, video, other websites, etc. For the most part, a source tag is used to replace elements in a web page by the contents located at a destination resource, an href tag is used to define a relationship between a resource on the web page and a destination resource, and an image tag is used to supplement the text on a web page with an image with the location of the destination resource.

Many content curators note a difference between links directed to a website's home page and links directed to deeper pages or content in a website's directory known as "deep links." These content curators argue that when a user visits a website's homepage and manually navigates to the deep link, the website owner makes more advertising money than if the user were linked directly to the deep link because, when self-navigating to the deep link, the user must view ads on every page in the breadcrumb trail between the home page and the deep link. Therefore, providing a user deep-linked content results in lower revenues for website owners. However, courts have declined to award damages or find a party liable for a cause of action solely for providing its users deep links to resources on a website. E.g., Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-cv-7654, Doc. 45 (C.D. Cal. Mar. 27, 2000).

However, there have been some cases where courts have found various content curators liable. Included in these are the copyright theories of aiding in the circumvention of technology protected by the Digital Millennium Copyright Act (DMCA) and contributory negligence. See 17 U.S.C. §§101, 104, 104A, 108, 112, 114, 117, 512, 701, 1201–1205, 1301–1332; see also 28 U.S.C. §4001. Moreover, issues with trademarks, names, symbols, graphics or images that identify and distinguish products or services may also arise.

A. Circumvention of the Digital Millennium Copyright Act

The DMCA forms the legal framework for the management of a creator's rights in digital works. See id. A section of the DMCA known as the anti-circumvention rule makes it illegal to circumvent technical measures (e.g., encryption) that prevent access to digital copyrighted works or to distribute services or products designed to circumvent these technological measures. See 17 U.S.C. §1201. Therefore, content curators could be liable for copyright infringement under the DMCA when they link to copyrighted material protected by anti-circumvention technology or tools that circumvent those technological measures. See id. One of the first cases to test the DMCA act exemplifies this rule.

In Universal City Studios, Inc. v. Reimerdes, the publisher of 2600: The Hacker Quarterly magazine and others were sued by eight movie studios for providing a program called DeCSS to users that circumvented technology designed to protect DVDs. 111 F. Supp. 2d 294, 303(S.D.N.Y. 2000), judgment entered, 111 F. Supp. 2d 346 (S.D.N.Y. 2000). The court ultimately ruled that posting links to an infringing source could constitute copyright infringement if website curators know that the link is to a program that circumvents technology. See id. at 341. Accordingly, the DMCA offers protection to website curators from liability only when they (1) do not know that the linked website had infringing content and (2) properly remove the link to the infringing website upon proper notification under the DMCA. See idsee also 17 U.S.C. §512(c)(3)(A)(ivi) (defining a proper takedown notice to contain "a physical or electronic signature ... [,] identification of the copyrighted work claimed to have been infringed ... [,] identification of the material that is claimed to be infringing ... [,] information reasonably sufficient to permit the service provider to contact the complaining party ... [,] a statement ... of good faith ... [, and] a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is alledgedly infringed.").

B. Contributory Copyright Infringement

Another theory that could get a web curator in trouble is contributory copyright infringement. In its essence, a website curator would be liable for contributory copyright infringement when the website has known and encouraged the use of links to obtain unauthorized copies of copyrighted materials. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293, 53 U.S.P.Q.2d 1425 (D. Utah 1999). In Intellectual Reserve, the court granted a preliminary injunction ordering the defendant to remove links to material. See id. at 1291. In this case, the defendant had obtained a copy of a church handbook, published parts of the handbook without reproducing the copyright notice of the original book, and had linked to other website containing portions of the same material. See id. at 1294.

C. Trademark Infringement

Additionally, website curators could also be liable for trademark infringement when a person is likely to confuse the use of a trademark with the origin of products or services. Using the linking technique of framing is one of the most likely ways that website curators may find themselves facing a trademark infringement issue.

Framing is a technique where a website curator allows users to view parts of another website on its website by the use of frames. For an example of a framed website, see John-David Kraaikamp, Frames Demo, http://www.mrinitialman.com/Library/HTML/Pictures/Other-Frames/framesmode.jpg (last visited Apr 24, 2017). See also Use of Frames to Incorporate Third-Party Content in Web Site Sparks Controversy, 13 No. 11 Computer L. Strategist 8 (1997). An illustrative example could be six individual boxes, each displaying six different websites, on a single web page of a hosting site. If one of the frames or boxes contains a trademark, then the argument is that a user of the hosting site might be confused as to whether or not the trademark is connected with the hosting site.

These are analogous to the circumstances in Futuredontics Inc. v. Applied Anagramics Inc., where the court found that framing the content, which included trademarks, of a competing site changed the competing site and that alteration could amount to trademark infringement. No. 97-cv-6991, 1999 Doc 148, at *5 (C.D. Cal. Mar. 8, 1999). Additionally, Washington Post v. Total News, Inc. also seemingly validates this stance, although it was ultimately settled out of court. See Frank C. Gomez, Washington Post v. Total News, Inc., 13 Berkeley Tech. L.J. 21, 23(1998). In this case, Total News framed the website content of popular news agencies and placed its own content around the framed content. See Rob Bierstedt, Plaintiff's Complaint in Washington Post Co. v. Total News, 480 PLI/PAT 235, 249 (1997). So the news agencies sued Total News for trademark infringement, noting that users of Total News may be confused on who authored the displayed content, as well as that framing their content in this way was a harmful and unfair use of their trademarks. See id.

Although the case settled out of court, Total News stopped framing the content from the news agencies that sued but continued to frame the content from other websites as well as hyperlinks to sources, which admittedly dilutes the clarity that this case provides. See "Use of Frames," supra, at 23.

III. A SPECIAL CASE: YOUTUBE VIDEOS AND INLINE LINKING

With the expansion of mobile devices, most website curators use a technique known as inline linking to embed rich media content, such as videos, sound, images or the like, on a web page. This technique minimizes the steps a user must take to interact with the rich media content. For an example of an inline-framed website, see John-David Kraaikamp, Inline Frame Demo, http://www.mrinitialman.com/Library/HTML/Pictures/Other-Frames/inline_frame.jpg (last visited Apr 24, 2017).

Although courts have been consistent with the most common approach to copyright linking cases, reasoning that inline linking does not infringe a copyright because no copy is made of the video on the site, website curators should be cautious and view the terms and conditions of the linking site. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146, 99 U.S.P.Q.2d 1746 (2007); see also Flava Work, Inc. v. Gunter, 689 F.3d 754, 103 U.S.P.Q.2d 1563 (2012).

For example, under YouTube's terms of service, content providers grant each user of YouTube a "non-exclusive license to access [their] Content through the Service." Terms of Service, YouTube (2010), https://www.youtube.com/static?template=terms (last visited April 18, 2017). Therefore, YouTube most likely allows for website curators to create embedded links to YouTube videos. In fact, this is entirely logical because YouTube gains increased ad revenue each time the video is displayed either directly on YouTube's website or embedded on other websites. One should note that YouTube may change its terms of service at any time, but it has not changed it in a number of years. See id.

However, it may not be wise for website curators to save these YouTube videos to their websites or offer them for download themselves. Not only would saving the YouTube videos possibly lay outside the scope of "accessing content through their service," but it may also impugn the Flava Works test decided by the U.S. Court of Appeals for the Seventh Circuit, which denotes that storing or making a copy of copyrighted work on a website may result in copyright infringement. Flava Works, Inc. v. Gunter, No. 10 C 6517, Doc. 77, at *7-*9 (N.D. Ill. July 27, 2011), vacated, 689 F.3d 754 (7th Cir. 2012).

As a side note, website curators should be cognizant that someone could take down a video at any time if YouTube decides that the video should be taken down and, therefore, pages with these embedded videos will display to the user as a blank YouTube video.

IV. BEST PRACTICES

In the end, to avoid potentially infringing acts, a website curator should ask the creators of the original content for permission to link to or use their content. Curators should get this agreement, known as a "linking agreement," in writing, denoting that the original content creator agrees to grant them a license to use the content in particular ways for a specified period of time.

When contacting or getting a response from an original content creator fails, then the website curator could place linking disclaimers to minimize liability for activities that occur when visitors view the linked content. This disclaimer would simply deny any endorsement and waive liability for any unauthorized activity. And always, if the original content owner shows up at a website curator's door, requesting that a website curator takes down content, save the headache and lean towards getting rid of it.

Originally printed in  Bloomberg BNA on May 5, 2017.

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.

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