Computer Law 484
Professor Richard H. Stern
Last updated 4-5-02
Is Linking Copyright Infringement?
I. Shetland Times Controversy
Professor Hapless' Web Page
Hello, there all you eager students of copyright law. Today, we're going to consider the celebrated controversy between The Shetland Times and The Shetland News, which was brought in Edinburgh, Scotland, under the UK Copyright Act of 1988. First, I want you to consider the cartoon image shown at the right.
The effect of that code which I wrote was for me to cause your browser to fetch to your screen the Wills.gif and juxtapose it with my explanatory text, which I have also caused your browser to fetch to your screen — all without the interposition of any volitional act on your part other than to select my Web page for viewing. (It's called an "inline link.") Since I have caused all of these acts without active operation on your part, the net effect from your standpoint is indistinguishable from my having simply copied the Wills.gif to my server in the same directory as my Web page and using the following HTML code:
Now, consider the following second notional web page:
Professor Wary's Web Page
Hello, there all you eager students of copyright law. Today, we're going to consider the celebrated controversy between The Shetland Times and The Shetland News, which was brought in Edinburgh, Scotland, under the UK Copyright Act of 1988. First, I want you to consider a cartoon image that you can obtain by clicking here.
The effect of that code which I wrote was to permit you, if you so chose, to click on the hyperlink and (as a result of your intervening volitional act) to cause your browser to fetch from the Shetland Times' server the image of Jno. Wills, and to present it to your screen in a new window unaccompanied by the text of my Web page. (This kind of link is usually what is meant when the term "link" is used. It's also called an HREF link -- a Hypertext REFerence link. It has also been called an "external link." There is another kind of external link, which is somewhat more conservative or is more suitable for the timorous. But I will let my colleague, Professor Warier, tell you about it.)
Now, consider the following third notional web page:
Professor Warier's Web Page
Hello, there all you eager students of copyright law. Today, we're going to consider the celebrated controversy between The Shetland Times and The Shetland News, which was brought in Edinburgh, Scotland, under the UK Copyright Act of 1988. First, I want you to consider a cartoon image that you can look at if you go to this link to this editorial Web page of the Shetland Times and scramble through the advertising and other tendentious material of that Web page proprietor. Eventually, you should be able to find the image of Jno. Wills as his former employer, the Times, with which he has had a bit of a falling out, has chosen to depict him.
. . . link to <a href="http://www.shetland-times.co.uk/st/
If you think that I am timorous, you should check out the Web page of my colleague, Professor Wariest. He won't even link directly to the editorial page containing the editorial about Wills and cartoon depicting him. Instead, Professor Wariest provides a link to the home page of the Shetland Times, which has a link to its editorial page containing the editorial about Wills and cartoon depicting him. I understand that there is still another copyright professor (his name escapes me--something like Most Wary of All) who provides no link at all but simply states that you can find material of such and such a nature at such and such a URL. You cannot click on any link to get there; you must copy or cut/paste the listed URL to your browser's address window. You don't suppose that what he does could nonetheless be some kind of contributory copyright infringement, do you? Could it depend on just what he states when he advises that you can find material of such and such a nature at such and such a URL? Could it make a difference whether his text recites the URL of the page or gives the URL of the image itself?
Now, consider the several notional web pages in terms of the provisions of section 106(1) of the 1976 U.S. Copyright Act. Now, consider section 106(2). Section 106(3). Are there any differences in the legal status of the respective web pages of Professors Hapless, Wary, Warier, Wariest? (Forget about fair use, implied license, and all that for the moment. Just section 106.) Now, consider section 106(5) and this 2002 opinion of the Ninth Circuit (go to the part near the end). You could write half a dozen different term papers on what's right or wrong with this opinion.
All right, forget about the legalities. What about economic effects? First, is there any difference in web traffic effect of the following different ways of putting that WILLS.GIF on your web page:
an <A HREF=...> home page link as Prof. Wariest did -- to the Shetland Times home page in the UK
an <A HREF=...> deep page link as Prof. Warier did -- to the Shetland Times editorial page in the UK
an <A HREF=...> direct image link as Prof. Wary did -- to the Shetland Times GIF file in the UK
an <IMG SRC=...> inline image link as Prof. Hapless did -- to the Shetland Times GIF file in the UK
copying WILLS.GIF to your system -- that is, the link refers to a file on your system, here, rather than to the Shetland Times in the UK (they might stop maintaining the file on their system, as they in fact did) -- and you use either an <A HREF=...> link to the GIF file on your system or an <IMG SRC=...> inline image link to the GIF file on your system.
Whose server does the work in each case? Hmmm, could the last option amount to doing the Sheltie Times a favor? Do you suppose they'd thank you for that? Would anybody?
Now let's think about a different kind of economic effect. Suppose that the Shetland Times has advertising for which advertisers pay it, or some other text that it wants viewers to see (say, "Subcribe now to the Shetland Times! Only 20 £ a month."). The Shetland Times places the WILLS.GIF on an HTML page containing that text. What is the difference in effect between your using any of the previous options to make the WILLS.GIF available to visitors to your web page and, instead, doing an <A HREF=...> to the Shetland Times' HTML? Does that have anything to do with why Ticketmaster sued Microsoft (see links below) for so-called deep linking (linking to a page that comes after the home or first page of a web site)? Now, suppose you place an <IMG SRC=...> link (as Prof. Hapless did) on your page, and on the same page you place your advertisements. At what point, if any, in these scenarios does copyright infringement occur?
Assuming that Professors Hapless and Wary, etc. have problems under section 106, do they have any basis for arguing fair use? What of implied license? Is it understood generally in the WWW community that anything on the Net may be linked to, without getting permission to do so? (See link provided below to Microsoft's answer in Ticketmaster v. Microsoft.) Is implied license in general a matter of fact or law? That is, is it a matter of intent of the parties? Or is it a matter of substantive law, so that an implied license is conferred whether the alleged licensor likes it or not?
What would be the legal effect if the Shetland Times or Washington Post or Ticketmaster puts up a notice like this somewhere on its web page:
No license, express or implied, is granted to any person to link in any manner to this site without advance written permission from the Publisher. Be advised that no license will be granted to anyone for deep linking, for framing or otherwise juxtaposing our copyrighted content with any other material, or for presenting it with our associated advertising material deleted or transformed in any way. We regard any such conduct with the strongest disapproval and will protect the integrity of our copyrighted material by suing anybody engaging in such conduct.
Does it make a difference if that is just a notice somewhere on the page (say, at the bottom) or if the Web page puts it on a Welcome page, with a script (or even a simple pair of links) to make you click YES I AGREE! before you can proceed? See this opinion from C.D. Calif.
III. Links to commentary. Here are some links to commentary on this case, and some related links, which you may find of interest if you are planning to write a paper on the subject:
Suppose that one or more of the following linked pages contains an unauthorized reproduction of material from Prof. Hapless' book, The Enigma of © Law. Am I committing contributory infringement by providing this link? What are the elements of contributory infringement? See Netcom, which begins at p. 193 of the 1998 edition of the Casebook. Are all the requisite elements present? See p. 199. What about distribution under section 106(3)? Are all the elements present? What about public display under section 106(5)?
CNET story on settlement of Shetland case (Nov. 1997)
"Link to Me and I'll Sue You" - Dvorak op ed piece in PC Mag (May 1997) on Ticketmaster suit against Microsoft
<a href=idiotic>, - Scott Rosenberg story in Salon (May 1997) on Ticketmaster suit against Microsoft
"A Ticket to Deride" - Another story about the Ticketmaster - Microsoft suit (May 1997)
Ticketmaster's complaint against Microsoft
Microsoft filed a very well articulated answer to Ticketmaster's Complaint (asserting implied license, contributory negligence, voluntary assumption of the risk, etc. arguments), but the Answer mysteriously vanished from the Web. This link is to a short excerpt, taken from a secondary source based on the now vanished links. (However, thanks to the creation of the Wayback Machine of www.archive.org it has now become possible to recapture Microsoft's Answer to Ticketmaster's First Amended Complaint.)
The case was settled in February 1999, on confidential terms. But Microsoft stopped the deeplinking and instead used a link to Ticketmaster's home page. For a New York Times "Cybertimes" story on the settlement, see Bob Tedeschi, "Ticketmaster and Microsoft Settle Linking Dispute."
Ticketmaster v. Tickets.com - two opinions of C.D. Cal., 2000 - denial of motion to dismiss and denial of preliminary injunction in deep linking case (hyperlink not copy)
''What's all the hype about hyperlinking?'' - article by a pratitioner and a law student about links, deep links, and framing
Keuster and Nieves, Hyperlinks, Frames and Meta-Tags: An Intellectual Property Analysis, 38 IDEA: J.L. & Tech. 243 (1998) - later version of preceding item
Here is a link to some discussion on the Usenet about a technological approach to deep linking and framing problems.
Here is a link to a Web page of Alta Vista in which it explains to Web page proprietors what to do if they do not want Alta Vista's spider to grab a link to their sites - use robots.txt or use an appropriate go-away metatag. (FYI, the metatag is: <META NAME="ROBOTS" CONTENT="NOINDEX, NOFOLLOW">)
Link to article on search engine copyright disputes: "Internet Search Engines Face Infringement Claims"
To read about the experiences of a Princeton grad CS student with the publisher of "Dilbert," when he linked his web page to Dilbert, using <img src=...> links, see The Dilbert Archives .
Links to 2004 edition of course casebook,
subchapters on linking and framing.
Framing is a related issue, in which linking is used in another way. To jump to the framing page, click on the image at left of a confused judge. Framing is the next major portion of the visual demonstration materials for this course. Framing leads into the discussion of various derivative work issues concerning Internet means for exploiting copyright protected content of other persons in ways that may or may not infringe copyright.
For a comment on the technical difference, if any, between <a
href="xxx">xxx</a> and <img src="xxx">, see
1995 paper. Unfortunately, the proprietors of the cited web page do not believe in A NAME tags, so you'll have to scroll about halfway through their document to find "Hyperlinking Versus Inlining," the discussion of this point.
2 The following statement appears on http://members.aol.com/girlgrafx/button.htm :
Pleez! Do NOT link directly to my images on my pages, including this page.
Upload them to your own server. Thanx!
You can find many similar statements on web pages containing collections of JPEGs or GIF animations that visitors might find useful and want to use on their web pages. Do you understand why the proprietors of these pages make these statements? Do you think the Sheltie Times would feel the same way? Consider the following Maine farmer story:
A city fellow driving his car very fast runs into a cow. She falls down in the road and starts bellowing. The farmer runs out.
The city fellow has just got out of his car and is helping the cow to her feet. "There, there. She's just fine. Good as ever. Not a scratch on her. Probably just stimulated her circulation and gave her something different to think about while she chews her cud."
The farmer says: "Waaal. If you think you done her that much good, Mister, do you suppose I ought to pay you something for it?"
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