Dear Doc:
I heard that it’s now illegal to put links to photos and videos on your webpages and in social media posts? Really? Won’t that just destroy the entire Internet? Asking for a friend.
Signed,
Every Internet User, Ever
Dear Every:
Yup. You heard right, at least as far as New York Federal District Court Judge Jed Rakoff is concerned. If his view becomes the law of the land (and beyond), we can pretty much kiss our Internet goodbye. But wait a minute, there may yet be hope. To understand what’s going on, we need to know a bit of history. (Yes, the Doc heard you all groan…)
Back in the early 1960s, a very smart fellow named Ted Nelson conceived something called “Project Xanadu”. Ted invented this idea of a hyperlink, so there need only be one copy of a document on a network, and everyone who wanted to show that document only needed to include the hyperlink to the original. (And yes, the Doc knows that this idea goes back to the Talmud…don’t get me started.) Back when network communication links were slow and disk space was expensive, this was a brilliant idea. Thus, as is typical, Nelson was roundly ignored. It was not until the late 1980s that the concept took off, when Sir Tim Berners-Lee, building on some of the concepts of Xanadu, introduced the World Wide Web at CERN, which used hyperlinks to remotely reference documents.
United States Copyright Law originally covered physical copies of authored works. Over time, Congress has expanded the subject matter and duration of the law. One of the rights Congress added to the “bundle of rights” under 17 U.S.C. §106 was the right to “display the copyrighted work publicly.” Now the purpose of hyperlinks on the Internet is to allow a web page or app to display a file (written document, photo, graphic, or even video or audio) on a page by fetching it from a server somewhere. See what happened there? The Internet is all about displaying information, and so is part of the Copyright Law. OOPS!
Back in the dark ages of the Internet, before 2010, there was a company that published magazines filled with photos of naked (!) ladies, called “Perfect 10” (without apologies to Bo Derek). When Google indexed the photos of their website, and put tiny little “thumbnail” images in the search results, the magazine sued Google, claiming that it was copying and displaying their photos. The case (Perfect 10 v. Google, Inc.) wound its way through the courts and eventually, the 9th Circuit Court of Appeals decided that there was an exception to the law called the “Server Rule”…essentially, that linking to a document was not making a copy (even though, technically, a copy does get made by your web browser) and that the display was to you, and thus, not “publicly”. And so, netizens rejoiced and were happy ever after.
Until, that is, Judge Rakoff’s latest opinion (cue ominous music, but not linked from anywhere). Judge Rakoff, in a case dealing with links to a video of a starving polar bear, determined that, “The server rule is contrary to the text and legislative history of the Copyright Act.”
Now this is just one judge’s opinion, in a preliminary motion, in just one case. It has not yet been considered in an appeal. But if other courts agree, and it becomes the law in the United States, we can all kiss our Internet goodbye, at least the Internet as we have known it. There will need to be a lot more original content if we can’t have hyperlinks. At least, if that happens, the Doc’s articles will be a lot shorter without all those pesky links!
Have a need for experienced counsel in intellectual property matters? Contact the folks at LW&H. They know the difference between a link and a frame (not that it matters!)
Until next month,
The “Doc”
— Lawrence A. Husick, Esq.