Eleanor Finch
The use of hyperlinks is a central feature of the internet, allowing websites to offer connections to other sites with the click of a button. While the mere reference use of a hyperlink is rarely unlawful, there are instances where providing a hyperlink to another website may constitute an infringement. This is particularly relevant in cases of contributory copyright infringement, where an individual knowingly induces or encourages direct infringement of a copyrighted work. For example, linking to a site that provides access to copyrighted technology, such as encryption or watermarks, may result in liability under the Digital Millennium Copyright Act (DMCA). Additionally, framing, a technique that divides a webpage into sections with coded links to external content, has been the subject of trademark and copyright infringement lawsuits, with some courts finding it to be a violation.
| Characteristics | Values |
|---|---|
| Hyperlinking to another website | Generally not unlawful, but depends on the context |
| Deep linking | Not copyright infringement, but may be liable under the DMCA if linking to a site that provides access to prohibited technology |
| Inline linking | May give rise to copyright infringement, but no copy is made on the site providing the link |
| Framing | May invoke liabilities for copyright and trademark infringement or dilution, but the law is unclear |
| Contributory copyright infringement | Occurs by "intentionally inducing or encouraging direct infringement" of a copyrighted work |
| Linking-plus | Hyperlinks can be used as part of an overall illegal scheme and can be illegal |
| Thumbnails | Using a thumbnail of a hyperlink may be ok, but depends on the specific T&Cs of the site |
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What You'll Learn
- Framing, a technique to divide a webpage into HTML sections, may lead to copyright and trademark infringement
- Inline linking, where a webpage displays content from another site, may violate copyright laws
- Contributory copyright infringement occurs when an individual knowingly induces or encourages direct infringement of a copyrighted work
- Deep linking, which bypasses a website's homepage, is generally not considered copyright infringement
- Linking to publicly accessible websites is usually legal, but reproducing images or content may constitute copyright infringement
Framing, a technique to divide a webpage into HTML sections, may lead to copyright and trademark infringement
Framing is a technique used to divide a webpage into multiple sections that use HTML code to pull content from different sources. It allows a user to view the contents of one website while it is framed by information from another site, similar to the "picture-in-picture" feature offered on some televisions.
While traditional website linking rarely constitutes copyright infringement, framing may lead to legal issues involving copyright and trademark laws. This is because the framed site arguably alters the appearance of the content and creates the impression that its owner endorses or voluntarily chooses to associate with the framer. For example, in the case of Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., a district court ruled that the addition of a frame that modified the appearance of the linked site without authorization could amount to infringement.
Framing can also lead to trademark infringement if the use of a graphic trademark to link to the trademark owner's site confuses consumers into believing that the linked site is associated with or endorses the site doing the linking. For instance, in the case of Washington Post v. Total News, Inc., the news agencies sued Total News for trademark infringement, arguing that users of Total News may be confused about who authored the displayed content, and that framing their content was a harmful and unfair use of their trademarks.
To avoid legal problems associated with framing, it is important to ask for permission from the content owner. While permission is rarely necessary for a regular hyperlink to another website's homepage, certain types of links, such as deep links that bypass a website's homepage and advertisements, may require permission. Additionally, it is important to be mindful of contributory copyright infringement, which occurs when someone knowingly creates a link likely to promote the unauthorized copying of copyrighted material.
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Inline linking, where a webpage displays content from another site, may violate copyright laws
The process of embedding or inline linking involves placing a line of HTML code on a webpage so that it displays content directly from another site. This is a common practice, especially among bloggers who may want to embed YouTube videos on their blogs to illustrate a point or initiate discussion.
While there is some uncertainty on this point, a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. This is known as the "server test", which says that inline linking doesn't create a copy of the source content, as defined by the Copyright Act.
However, subsequent cases have rejected the server test, so the position on inline linking and copyright remains unclear. Inline links may violate copyright laws. If you are notified of a potential copyright violation, you should remove the link immediately to try and minimize any liability for contributory copyright infringement.
Framing, another type of linking, may invoke liabilities for not only copyright infringement but also trademark infringement or dilution. Depending on how you design your page, a user might be confused into believing that all of the source material is yours. Some plaintiffs have sued websites for framing under trademark and related areas of law, but most cases have settled and the law remains unclear.
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Contributory copyright infringement occurs when an individual knowingly induces or encourages direct infringement of a copyrighted work
Providing a hyperlink to another website does not in itself constitute an infringement. However, there are certain situations in which hyperlinks can be used unlawfully.
In the context of hyperlinks, this could mean providing a hyperlink to a website that contains infringing material, with the knowledge that the material is infringing, and encouraging others to access it. For instance, in Pearson Education v. Ishayev, the court held that providing a hyperlink to copyright-infringing materials did not constitute infringement. However, the seller was still found liable for infringement by uploading the books to the hyperlinked sites.
It is important to note that knowledge is an essential element of contributory copyright infringement. If an individual provides a hyperlink to a website that violates copyright but is unaware of the violation, they may not be held liable. However, once they become aware of the potential copyright violation, they should remove the link immediately to minimize any liability.
Additionally, framing, a technique that involves dividing a web page into multiple sections with HTML code to pull content from different sources, can also lead to contributory copyright infringement. If copyrighted material is modified without authorization or if users are confused about the association between the two websites, the framer is more likely to be found liable for copyright infringement.
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Deep linking, which bypasses a website's homepage, is generally not considered copyright infringement
The concept of "deep linking", or providing a hyperlink to another website, has been the subject of legal debate over the years, with a focus on whether it constitutes copyright infringement. Despite some inconsistencies in early case law, it is now generally accepted that deep linking does not amount to copyright infringement. This is because, just as an author cannot prevent readers from skipping to the end of a novel, a website owner should not be able to dictate the order in which a user accesses their website.
This view is supported by the cases of Kelly v. Arriba Soft Corp. and Perfect 10, Inc. v. Amazon.com, Inc., which established that inlined links to thumbnails do not infringe on copyright under fair use principles. These decisions were based on the "server test", which states that inline linking does not create a copy of the source content as per the Copyright Act. Instead, the secondary website only displays the content, rather than hosting it on its servers.
However, it is important to note that the position on inline linking and copyright is not entirely settled, with some subsequent cases rejecting the server test. Additionally, while deep linking itself may not be unlawful, related practices such as framing or inline linking may give rise to copyright infringement. Framing involves dividing a webpage into sections that use HTML code to pull content from different sources, and it has been the subject of several lawsuits, including Futuredontics Inc. v. Applied Anagramic Inc. and Washington Post v. Total News, Inc.
Furthermore, while deep linking to a site that provides access to copyrighted material may not be illegal, doing so to a site that offers unauthorised copies of copyrighted works could result in liability for contributory copyright infringement. This occurs when an individual knowingly induces or encourages direct infringement of a copyrighted work. For example, in the case of Erickson Productions, Inc. v. Kast, the defendant was found liable for contributory copyright infringement for directing their website developer to make their site resemble another with permission to use certain photos.
In conclusion, while deep linking is generally not considered copyright infringement, related practices and the specific context of the linked content can introduce legal complexities. Website owners and content curators should remain vigilant to avoid potential liabilities when linking to external sources.
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Linking to publicly accessible websites is usually legal, but reproducing images or content may constitute copyright infringement
Linking to publicly accessible websites is usually legal, but there are some important considerations to keep in mind regarding copyright infringement.
Firstly, it's important to understand the difference between copyright and trademark infringement. When someone creates an original work, they automatically own the copyright, giving them the exclusive right to reproduce and distribute it. Copyright infringement occurs when someone else copies or distributes the work without the owner's permission. On the other hand, trademark infringement involves the unauthorised use of assets associated with a business identity, such as logos or slogans.
In general, simply providing a hyperlink to another website does not constitute copyright infringement. This principle has been affirmed by various court cases, including Pearson Education v. Ishayev, which held that even a hyperlink to copyright-infringing materials did not itself breach copyright. Similarly, the cases of Kelly v. Arriba Soft Corp. and Perfect 10, Inc. v. Amazon.com, Inc. established that inlined links to thumbnails do not infringe on copyright, as the secondary website only displays the content without hosting it on its servers.
However, it's important to note that certain linking practices can potentially lead to liability. For example, "framing," which involves dividing a webpage into sections that pull content from different sources using HTML code, can result in copyright infringement if it modifies copyrighted material or causes confusion about the source of the content. Additionally, inline linking, where a webpage displays content directly from another site, may give rise to copyright infringement concerns, although there is legal uncertainty on this issue.
To minimise the risk of copyright infringement when linking to external sites, it is essential to properly credit the content owner and obtain any necessary permissions. Additionally, if you become aware of a potential copyright violation, you should remove the offending link immediately to avoid contributory copyright infringement, which occurs when someone knowingly induces or encourages direct infringement.
While linking to publicly accessible websites is generally legal, reproducing images or content from those websites may indeed constitute copyright infringement. This is because reproducing content involves creating a copy of the original work, which falls under the exclusive rights of the copyright owner. Therefore, it is crucial to respect the copyright owner's rights and obtain permission or provide proper attribution when reproducing images or content from another website.
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Frequently asked questions
Providing a hyperlink to another website is generally not unlawful. However, if the link is used to facilitate or encourage illegal activity, such as distributing trade secrets or accessing copyrighted material, it may constitute an infringement.
Deep linking is a link that bypasses a website's homepage and goes directly to a specific page. Inline linking involves placing a line of HTML on your site so that your webpage displays content directly from another site.
If you link to a site that contains copyrighted material without knowing, you are generally not liable as long as you remove the link once you become aware. However, if you knowingly link to copyrighted material and facilitate or encourage others to access it, you may be liable for contributory copyright infringement.
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