Linking To Third-Party Websites And/Or Content – What You Need to Know

It is common for websites to “link” to third-party websites or content, but what is your liability if you link to a page or document that is copyrighted? In short, it depends. 1

Types of “Linking”

“Linking” between websites and/or content is the connecting of two different files. A link may lead either to another file in the same website, or to a file on a different computer located elsewhere on the Internet. 2 Currently, there are three types of “linking”: (i) deep linking, (ii) inline linking, and (iii) framing.

Deep linking is when you place a link on your site that leads to a particular page within another site. 3

Inline linking is when you place a line of HTML on your site so that your webpage displays content direction from another site. 4 This is also called “embedding.” By way of example, bloggers embed videos or images on their blogs.

Framing refers to the practice of dividing a web page into multiple sections that use HTML code to pull content from different sources. 5

Liability of Linking

Regardless of the type of linking, in certain situations, links can be used in a way that may violate federal and/or state laws such as copyright infringement, trademark infringement, misappropriation, unfair competition, breach of contract and/or defamation. A breakdown of the different types of liability are set forth in the below paragraphs.

A. Copyright Infringement
Copyrights attach automatically to all original and creative works in a tangible and/or digital form. Copyright infringement occurs when someone violates the exclusive rights granted to a copyright owner under the Copyright Act (i.e., the right to reproduce the work, the right to publicly perform or display the work, the right to prepare derivative works, and the right to distribute copies of the work.).

i. Direct Copyright Infringement.
While there is some uncertainty on this point, the Ninth Circuit Court has held that inline linking does not directly infringe a copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. 6 Specifically, the Ninth Circuit has adopted the “server test,” which addresses what it means to “display” a work for purposes of the Copyright Act. In short, the “server test” states that “a computer owner that stores an image as electronic information and serves that electronic information directly to the user is displaying the electronic information in violation of a copyright holder’s exclusive display right. Conversely, the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information.” 7

ii. Contributory Copyright Infringement
If you knowingly link to works that clearly infringe somebody’s copyright (i.e., pirated music files or video clips of commercially distributed movies and music videos), you may be liable for “contributory copyright infringement.” Contributory copyright infringement occurs by “intentionally inducing or encouraging direct infringement” of a copyrighted work. 8

As long as you do not know that a work infringes someone’s copyright, then you typically cannot be held liable for contributory infringement for directing users to that work, as “contribution to the infringement must be intentional for liability to arise.” 9 Notwithstanding the foregoing, courts have also imputed the element of intent when someone should have known the content would infringe. For example, in Perfect 10, the Court held that “under Grokster, an actor may be contributorily liable for intentionally encouraging direct infringement if the actor knowingly takes steps that are substantially certain to result in such direct infringement.” 11

Thus, use your common sense – it not safe to simply claim you “didn’t know” when the facts show otherwise.

iii. Vicarious Infringement
“One infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” 12 An example of vicarious infringement is the Napster case where Napster had a closed system that allowed its users to download and upload copyrighted music. 13 Because Napster’s system required user registration and could terminate its users’ account, the court held that Napster had the right and ability to prevent its users from engaging in infringing activity. 14

B. Trademark Infringement
A trademark is a word, slogan, image, or other device that is designed to identify the goods of a particular person or organization. Trademark infringement occurs when one party uses the mark of another that creates a likelihood of confusion, mistake and/or deception with consumers. In the context of linking, any use of a trademark on your site or a link to another’s site that falsely leads a visitor to think there is an association, affiliation, approval and/or sponsorship between your site and the linked site can be trademark infringement.

C. Misappropriation
Misappropriation is a type of unfair competition in which a competing party misappropriates (i.e., takes) the property of a competitor that the competitor has invested substantial time, skill and money. Note, however, depending on the relevant state law misappropriation theory, this cause of action may or may not be preempted by federal law.

D. Breach of Contract – Terms of Use
Most websites have a “Terms of Use” policy that dictates the terms under which a user can access and browse its website. In these terms of use there are typically provisions regarding ownership and use of the website’s content and intellectual property. There are also typically provisions regarding jurisdiction and venue for disputes regarding the use of content on the website. Thus, if you violate the terms of use by embedding a copyrighted image or work from the website into your own website, the owner of the image or work can sue you for breach of contract in the forum indicated in the terms of use.

E. Defamation
Defamation, which consists of both libel and slander, is defined by case law and statute in California. In short, defamation is a false statement that harms a person’s reputation. See Cal. Civ. Code §§ 44, 45a, and 46. In the context of linking, can you be liable for defamation when you hyperlink to a defamatory statement?

In 2006, in Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63, the defendant posted to two websites a copy of an allegedly defamatory article written by another. The California Supreme Court held, similar to most courts addressing the issue, that bloggers are immune from being sued for “distributor” liability under defamation law. Specifically, the Barrett Court held that “intermediaries” who simply pass on information accessible on the Internet are immune from liability under the Communications Decency Act of 1996, which provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 15 Thus, according to Barrett, republication of a defamatory article is not a basis for liability, as CDA immunity applies.

F. Summary
In light of the above, it is best to know the origin and ownership of the website and/or content that you link to or include on your website. Although this body of law is still evolving, website owners still need to be aware of the risks in linking (or embedding) content on their own website.

Notes:

  1. This blog article does not contain an inclusive list of potential liability and is only limited to the Ninth Circuit. Moreover, this blog article is based on general principles of law and is intended information purposes only.
  2.  http://www.bitlaw.com/internet/linking.html, accessed 2/26/2014.
  3.  http://www.dmlp.org/legal-guide/linking-copyrighted-materials, accessed 2/26/14.
  4. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1156 (9th Cir. 2007)(“The process by which the webpage directs a user’s browser to incorporate content from different computers into a single window is referred to as ‘in-line linking.’”)
  5. Id.; see also Perfect 10, 508 F.3d at 1156 (“The term ‘framing’ refers to the process by which information from one computer appears to frame and annotate the in-line linked content from another computer.”)
  6. Id.
  7. Perfect 10, 508 F.3d at 1159 (citations omitted).
  8. Perfect 10, 508 F.3d at 1170; see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd, 545 U.S. 913, (2005).
  9. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001)(“Contributory liability requires that the secondary infringer “know or have reason to know” of direct infringement. “)
  10.  Id. at 1171.
  11.  Id. at 1171.
  12. Id. at 1169.
  13.  Napster., 239 F.3d at 1010.
  14.  Id. at 1023.
  15. See 47 U.S.C. § 230(c)(1); Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63; McVey v. Day, B205465, 2008 WL 5395214 (Cal. Ct. App. 2008).