Tuesday, November 14, 2017

Look Before You Link

How often each day do you send an email, post a Facebook message, or tweet? Add content to your business website? Write a blog?

In those communications, how often do you include a link to third-party material that directs someone to information or an image that is referenced in your communication, supports your conclusion, illustrates your point, or is simply interesting or beautiful or funny?

If you are paying attention to the congressional testimony of social media giants regarding questionable political advertisements and phony accounts, you may (should) now pause before you insert a link to consider whether you are referring to material that is “real” and worthy of repeated disclosure. But how often do you consider whether your linking might constitute copyright infringement?

Early in Internet history, it was accepted that linking to a third-party’s home page did not require permission, and not long thereafter, deep linking (bypassing the home page to go directly to specific material) was generally accepted as not constituting copyright infringement. Ten years ago, the Ninth Circuit determined that in-line linking and framing of photographic images (elements from another site appear on the website being viewed) by Google did not constitute copyright infringement because Google servers did not actually store the images. The Google link merely instructed the user’s browser where to find the images that were then displayed directly from the third-party server(s) on the Google page. Under this “server test,” only the third party is actually displaying and distributing the material directly from its server. The party that merely provides the link is therefore not liable for copyright infringement. The Court expressly noted that it didn’t matter if users thought they were viewing the images from the Google web page as unlike trademark law, copyright law does not protect against consumer confusion.

Following the Google lawsuit, the law in the U.S. has been more or less settled for the last 10 years – linking and framing generally do not constitute copyright infringement even though the underlying linked material may be protected under copyright law. Only the person putting the material online is responsible for infringement.

But, earlier this year, Justin Goldman, a photographer, joined by Getty Images, sued a number of publishers (Breitbart News Network LLC, Heavy, Inc., Time Inc., Yahoo, Inc., Vox Media, Inc., Gannett Company, Inc., Herald Media, Inc., Boston Globe Media Partners, LLC and New England Sports Network, Inc.) for copyright infringement relating to online articles embedding tweets that included his photograph of Tom Brady (New England Patriots quarterback) in the Hamptons.  

The defendant publishers claim that they are not liable for copyright infringement under the “server test” – the photo included in the embedded tweets was not hosted on or distributed from servers owned and controlled by the defendants, but by a third party (Twitter), and the photo itself was uploaded to the Twitter server by one or more third parties that authored the original tweets (not sued by Goldman). When the tweets were removed from the Internet, or the photo removed from the tweet, either voluntarily or pursuant to takedown demands, the photo was no longer visible in the defendants’ articles.   

What does all this mean? Probably nothing if the defendants defeat the Goldman/Getty claims. But if Goldman/Getty win? Individuals and others with limited followings may not be directly affected simply because their “link” in the chain is too small or limited to be worth a lawsuit (but still subject to a takedown demand for direct contribution to any infringement). On the other hand, search engines, news publications, media outlets, business and other major information organizations would be concerned if simply linking third-party material without authorization were to pose increased financial risk.  

While we wait for the court’s determination, companies that host websites or social media pages containing user-uploaded content (e.g., text, photos, videos) can limit their liability for copyright infringement by following a series of steps outlined in the Digital Millennium Copyright Act (DMCA) to qualify for “safe harbor” protection. These safe harbor steps include a “notice and takedown” procedure for removing infringing material. One of the prerequisites of being eligible for the safe harbor is for the website operator to have recorded with the U.S. Copyright Office contact information for an agent designated to receive infringement claims. The website owner is responsible for assuring that its agent designation is recorded via a new online system by Dec. 31, 2017. 

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