In 1996, the U.S. signed onto the WIPO Internet Treaties which requires its member states to give authors of creative works the exclusive right to decide how, when and where their works are made available and communicated to the public, including on the Internet or other digital platforms. The U.S. implemented these treaties through the Digital Millennium Copyright Act (DMCA), but did not explicitly explain the bounds of certain rights, relegating the courts to ultimately decide their meaning. Unfortunately, the lack of guidance has caused differing opinions among the certain courts. In A&M Records v. Napster, Inc. the 9th circuit concluded that ‘‘Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights, while other Circuit cases have have required actual distribution for a claim of infringement.
To correct this oversight, the Copyright Office has posted a Notice of Inquiry to study the situation and solicit public comments on whether their is merit to amending or clarifying the “make available” clause within the DMCA.
While clarification may be warranted, one potential consequence of any update may be that hyperlinks would be considered an infringement, as they “make available” copyrighted work to the public from another location without permission from the author. Such a decision would have a chilling effect on the free flow of information and cause devastating harm to social media sites, like Facebook and Google Plus, which rely on third party hyperlinks.
The Copyright Office has posted a Notice of Inquiry to solicit comments.
In a recent blog post, the Digital Library Association of America posted a comment stating, “We hope you’ll agree that linking is an essential—perhaps the essential—element of the open web, and that we must work together to keep that option fully available to us all.”
The reality is that many content creators posting on the Internet want their work to be linked. It increases traffic to their sites and is a key metric in determining placement in search engine results. But, because each author automatically holds a copyright to their content and a copyright notice is not required, readers would have to assume that the author does not want their content linked, or otherwise risk a copyright violation.
Author’s would instead need to affirmatively notify their readers that linking is allowed. Creative Commons licenses might provide a solution where authors add the license link to their posts. The problem of course is that not every content creator, nor user, is aware of Creative Commons. Many users might not even be aware of the change to the law, continuing to link as they have in the past, not knowing they are now infringers. It’s not hard to envision some unscrupulous people taking advantage of that fact.
One might think that this warning is overblown and that hyperlinks will never come user copyright protection. I would agree that the likelihood is low, but certainly not zero. If it were not of some concern, institutions like the Digital Library Association wouldn’t be commenting. After all, it’s not as if Congress hasn’t signed laws with unintended consequences before. And, with a Congress that has shown itself to be deficient in its understanding of technology and the Internet, (remember “the Internet is a series of tubes”), it may be healthy to at least monitor the progress of this Inquiry.