Can Linking to Something Be Copyright Infringement? Celebrity Lawsuits Raise the Question
Lawsuits from filmmaker Quentin Tarantino and pop artist Prince thrust into the spotlight the question of whether or not hyperlinks can be copyright infringement.
Tarantino is suing the Gawker.com for leaking his script of The Hateful Eight on their sister site Defamer while Prince wanted various websites to pay $1 million each for bootlegged material in a short-lived suit. While the lawyers for both are claiming copyright infringement, those being sued only linked to the copyrighted material. Prince’s lawyers alleged that 22 entities have shared thousands of links to bootlegged concert performances across Facebook and Google’s Blogger platform. Only two people have been identified by name in the suit while 20 others are listed by their websites, like PurpleHouse2 and FunkyExperienceFour.
“Apparently even the circulation of a 31-year-old live set damages Prince’s earning capability, with the singer leveling charges of direct copyright infringement, ‘unauthorized fixation and trafficking in sound recordings’, contributory copyright infringement and bootlegging,” writes Andy of TorrentFreak, a site devoted to file sharing and copyright news.
Meanwhile, Tarantino is also suing for contributory copyright infringement, but his suit against Gawker is slightly difference since the site solicited the filmaker’s script, which a reader found on a file-hosting site and then posted a link to.
While Gawker is also being sued for contributory copyright infringement, the suit against them is slightly different since they solicited Tarantino’s script, which a reader found on a file-hosting site and sent them a link to. Even though the complaint was filed Monday, the suit has already gotten particularly nasty with Gawker editor John Cook firing back on the site.
Contributory infringement is a legal theory that has traditionally been deployed against file-sharing sites and search engines—venues that explicitly exist as directories to copyrighted content. Gawker and Defamer are news sites, and our publication of the link was clearly connected to our goal of informing readers about things they care about. As far as I can tell (but I’m no lawyer!), no claim of contributory infringement has prevailed in the U.S. over a news story. We’ll be fighting this one.
There is some truth to Cook’s statement because contributory copyright infringement doesn’t have as well established guidelines as direct infringement, according to trial lawyer Max Kennerly.
If you’re not clear what “contributory” infringement is, take heart. The claim doesn’t come from the old common law, like most civil causes of action. The claim also wasn’t created by Congress through a statute; the Copyright Act only covers direct infringement claims against the actual party distributing the copyrighted work. Rather, the Supreme Court took the Copyright Act and then decided to expand it using common law doctrines relating to conspiracy claims and vicarious liability.
So what is contributory copyright infringement? According to Kennerly, Seventh Circuit Judge Richard Posner defaulted to a 1998 ruling where “personal conduct that encourages or assists the infringement” when trying to answer that question in 2012 copyright case.
A federal court in New York tackled the question of hyperlinks when textbook publisher Person Education they sued two people for selling copyrighted material uploaded from file sharing site and sending the links to online buyers While selling copyrighted material was obviously infringement, the court sided against Person on the question of whether or not the link sharing also counted as infringement. The court said that hyperlinks are the
digital equivalent of giving the recipient driving directions to another website on the Internet. A hyperlink does not itself contain any substantive content; in that important sense, a hyperlink differs from a zip file. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner’s five exclusive rights.
By removing the issues of links, “the court said that the result could be different if, in addition to sending the hyperlink, the defendant had actually uploaded the copyrighted material to the cloud server himself,” according to Paul Stanfield, partner at Stanfield Law. “Since the court found that there was no evidence that would allow a jury to find that one of the defendants had uploaded the material, the court granted summary judgment to that defendant on that limited issue.”
That is pivotal for Gawker, which has been very vocal about the site only sharing the script’s link and not actually leaking it. If this case does go to court, the judge must define what “contributory infringement” is in the online world, but until then, the online battle between blog and director will be just as exciting as any court arguments.