WRAL Tech Wire

Website Links: When Do They Result in Copyright Infringement?

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• Ward and Smith, P.A.

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Editor’s Note: A. Jose Cortina is a member of the Intellectual Property Practice Group of Ward and Smith, P.A.

As a general rule, copyright infringement occurs when a party violates one of the exclusive rights granted to copyright owners under the law. More specifically, a copyright gives an author, artist, and others the right to exclude others from using their works by granting the copyright owner the exclusive right to sell, use, display, and distribute (i.e., publish) the copyrighted work.

The Internet and Direct Copying

The Internet, and more particularly the worldwide web, has created numerous opportunities for copyright infringement by those viewing other parties' web pages. More specifically, the web has presented Internet users with an elegant and sophisticated way of creating web pages which display images and text. Such images and text typically are created by the owner of the web page or obtained, either with or without a license, from others by copying. If the image or text was obtained with a license, then that image or text is properly displayed on the web page as long as it is within the display rights permitted by the license. If the image was obtained without a license, then not only is the owner of the web page posting that image liable for copyright infringement, but anyone else copying the image from the web page also will be liable for copyright infringement.

In considering whether copying from the Internet is acceptable, a simple rule of thumb is that if there is no specific authorized permission or click-on license agreement outlining the conditions under which the images or text may be copied, then you should not copy the images or text. To do so may constitute infringement of the copyright of the web page owner or of those from whom the web page owner obtained the image or text.

Linking

Linking and framing technologies have created a whole new area of potential liability, depending on how they are used. If a simple link is provided on a web page (the "linking page") and all the link does is connect a viewer to another web page (the "linked page"), no copyright concern is likely to arise. On the other hand, more advanced manipulations such as directly linking to content that normally would be displayed only on the linked page can cause concern. This is an area of the law that is uncertain because most disputes have been settled and there are few, if any, litigation results to provide guidance.

A more common practice likely to create problems is called "framing." Framing occurs when the owner of a web page (the "framing page") links to content on a linked page, and the content of the linked page, not just a link to the linked page, actually appears on the framing page with the framing page's own content, including advertising and other promotional displays. In this case, the linking is not a mere pass through to another independent web page, but instead is a taking or copying of the materials from the linked page to be placed on the framing page as if it were the framing page owner's content. In such a case, it is difficult to argue that permission was given to display the content since the content actually is being loaded from the linked page upon which it appeared originally into the framing page. Without a license from the owner of the linked page, this would be a copying that is unauthorized and a violation of the copyright of the owner of the linked page even though the content was not physically moved to the framing page.

International Concerns

While the prior discussion involves the copyright law of the United States, decisions in other countries have created a murkier scenario. More specifically, in the United Kingdom, a website that linked to unauthorized versions of TV shows and films was shut down for "facilitation of copyright infringement." This result is entirely possible in the United States, even in a simple linking situation where the link allows access to material that infringes another's copyright. In the most common scenario, the copyright owner would proceed against the direct infringer who is the owner of the linked site. However, if the direct infringer is beyond the reach of the court in which the copyright owner wishes to bring suit, it is possible that the copyright owner may choose to proceed against the owner of the linking site, especially if the owner of the linking site is located in the United States.

Copyright is Not the Only Concern

In addition to copyright concerns, other issues arise due to the technology involved in preparing websites, displaying them, and linking them to others. One situation arises when the link causes so much traffic to the linked website that the traffic makes the linked site inoperable. Legal actions have been taken based on theories of conversion and trespass when the computer resources of the linked website have become extremely taxed and even inoperable.

Thus, when proceeding to create a web page which includes links in various forms to other websites, a web page owner must take care to make sure that the rights of others are not violated. The safest scenario involves creating a link which only direct the viewer to another person's website and away from the originating website. Any other arrangements, including framing and/or linking to known infringer websites, can give rise to a risk of suit and significant liability.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. A. Jose Cortina practices in the Intellectual Property Practice Group, where he concentrates his practice in all areas of intellectual property, including patents, trademarks, copyrights, and trade secrets. Comments or questions may be sent to ajc@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.