Wednesday, July 18, 2012

Copyright Law and Hyperlinking - Think Again

Copyright, perhaps more so than any other area of law, is a ripe domain for the education of business persons.  Especially in the “Internet Age” when there is a certain ease of accidental infringement possible.  In the non-computer world it is difficult to accidentally infringe the copyrighted work of another, though anything is possible.  In today’s world copyright infringement is prolific.  We read about it in the news, and see it during movie previews (MPAA’s “You Wouldn't Steal a Car”).  The root of this problem is the ease with which information can be copied and proliferated by the most often used tool in the office, the computer.  However, there are more subtle ways to run afoul of another business’s copyrights.  It is possible that the simple act of hyperlinking could be copyright infringement.  While no case in the Fifth Circuit has yet to address the issue (other circuits have e.g. Ticketmaster Corp. v., Inc., 2000 U.S. Dist. LEXIS 4552 (C.D. Cal. 2000)) an application of the “fair use” factors is still useful.  Those factors include:

1.       The purpose and character of the use;
2.       The nature of the copyrighted work;
3.       The amount and substantiality of the portion used; and
4.       The effect of the use upon the potential market for or value of the copyrighted work.

Assuming you are a business person with a question regarding whether or not your use of material is “fair use” under copyright, it is also safe to assume that the first factor will weigh against you as you are most likely using it in a business context.  The second factor goes towards the informative versus functional nature of the copyrighted material; the reproduction of informational work is more likely to be “fair use.”  The third factor is the sticking point.  Does a hyperlink use any portion of the material?  On one hand it seems to be outside of any normal understanding of “use,” but on the other in a sense the hyperlink contains the entire work and reproduces it for “infringer’s” audience.  The last factor is fact specific depending on industry, but in an internet context it is unlikely that the potential value of a copyright would be damaged by a hyperlink since the content is already on the internet.

I have discussed hyperlinking as the lowest common denominator of potential copyright infringement for two reasons: first, it is ubiquitous; and second, any higher use of content begins to trigger definite warning signals in the head of a copyright lawyer.  For example, what if you had a hyperlink that also displayed an image of the website you are linking to?  Or what if the hyperlink uses the actual text of the title as the lettering of the hyperlink?  The real issue at play here is not really avoiding a successful copyright suit; it is avoiding a copyright suit at all.

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