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Will Hyperlinks Become a Copyright Infringement?

Hyperlink and copyright

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.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at steve@orangenius.com. His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

4 Comments

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  • How is linking effectively any different than citing another work in a piece of writing? If the link is to a website where a copyrighted work is being presented illegally, that is a completely different matter, between the copyright holder and the offending website, or whoever illegally posted that content to that website.

  • It is as the contents from a book that must need protection. But when you forbid to use the title of the book in which this contents are to read such as advertisments and other freedom such asthe shop-window or display than it will unsaleable and it will be just and only dead stock. That wil be a very silent end of our culture. Some people must hanged apart for their good ideas.

  • The copyright office is insane… linking is not infringement and never will be! It’s too late to change internet conventions now, everyone has been doing this for 20+ years, that alone should make it legal.

    • That has to be the most faulty argument I’ve ever seen.

      Laws can and do change. If something being legal for period of time was enough to make it legal permanently (which is what you’re arguing), then we’d still have slaves. Heck, we’d still be forced to provide room & board to soldiers. Both of those were legal until they weren’t.

      You can’t punished for doing it for the past 20 years, but the law sure as heck can change to make you stop doing it in the future. That you somehow think they can’t is, honestly, a bit frightening.

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