dr. copyright

Dear Doc:

The most basic feature of the design of the World Wide Web is the hyperlink, which allows a browser to display elements of content stored on a web server. The great power of the Web is that the content need not be stored on the same server that hosts a page. Displaying content on another server is done using an in-line or “embedded” link. I thought that this meant that linking to a photo on someone else’s server was OK under copyright law. Am I right?

Potential Infringer

Dear PI:

Until recently, the Doc thought that just having an embedded link in your web page was perfectly fine under US Copyright Laws (17 U.S.C. §101 et seq.) You see, in a case called “Perfect 10“, the Ninth Circuit Court of Appeals determined that having links in a page means that, “the end user’s browser follow[s] the HTML instructions to directly download and display the content from other websites.” The Court said that using links was legal. 

Since 2007, other courts have followed that opinion when it comes to HTML links. Goldman v. Breitbart News Network LLC, focused on a photograph of quarterback Tom Brady posted on Twitter and then linked in multiple articles about Brady. The photographer sued the publishers of the articles, claiming that they directly violated his exclusive display rights. As in Perfect 10, none of the defendants copied, saved, or transmitted the photo itself. Instead, they pasted HTML instructions linking to the Tweet containing the photograph. And, just like in Perfect 10, the end users’ browsers directly downloaded and displayed the photograph, not from the defendants servers, but from a third-party source, in this case, Twitter. In spite of all of this, the Goldman court reached the opposite conclusion and ruled that the embedded links “violated plaintiff’s exclusive display right.” (The Doc is still shaking his head thinking about the implications!)

First, the Goldman court said that a defendant need not possess or transmit an image to display it; rather, sending a reference to the location of the image (e.g., an HTML link) is equivalent to sending the image itself. (The Doc says that by telling you to visit the Philadelphia Museum of Art, he has now legally displayed all of the art that you see when you go there!) Then, the judge stated that the Supreme Court’s decision in American Broadcasting Cos., Inc. v. Aereo, Inc., held, “that liability should not hinge on invisible, technical processes imperceptible to the viewer”. (So the Doc says that you should not worry that you got to the Art Museum by driving a car, and that you have no idea how the engine actually works.) On this basis, the judge expressly rejected the reasoning of Perfect 10, which it said (for the first time) only narrowly applies to cases involving search engines.

The defendants and others raised concerns with the Court about the, “tremendous chilling effect on the core functionality of the web” and “radically change[d] linking practices” that would result from a ruling that in-line linking infringes copyright. The judge rejected these concerns, and granted partial summary in favor of Goldman.

The Goldman case is fully analogous to Perfect 10 because it concerned photos linked on the defendant’s website but hosted elsewhere. The Goldman court, however, found that mere instructions to go look at the photo are legally equivalent to actually making a copy of it. Once again, the Doc marvels as the judges and the law fail to keep pace with changing technologies. While no appeals court has weighed in yet, this decision worries the Doc.

Do you have a question about how the law may treat your technology? Do you have a web page with links in it? The attorneys at LW&H are waiting to help you navigate the swirling currents of legal reasoning. Give them a call.

Until next month,
The “Doc”

–Lawrence A. Husick, Esq.