Summary: There have been 3 court cases in the US where sites were forced to take down links leading to infringing material on external sites. The sites were found guilty of ‘contributory infringement’ for simply linking.
Although unclear the law leans in favor of content owner so if you linked to copyrighted material and don’t take it down you could very well lose a legal battle and face huge legal fees. Even blogs are at risk!
A large number of cases never reach the courts where sites are served with takedown notices and dare not risk ignoring them as they may otherwise face liability.
Are copyright laws out of control and infringing our own right to share information and discuss what is available on the web?
Is Linking to Infringing Content Illegal in the US? Like it or not the short answer is yes. I don’t agree with it or like it but its true. The law currently leans towards the concept that linking to infringing content is illegal.
Following my last post I looked into the laws of linking a little more. I’m as stunned as you are to find that linking to copyrighted material is illegal. Our freedom to link to whatever we want to on the net is being threatened.
Is Linking to Infringing Content Illegal in the US? Like it or not the short answer is yes.
It turns out that QuickSilverScreen (QSS) is in fact illegal for linking to TV shows on video sharing sites; the site wouldn’t stand a chance in court. Before you jump in to disagree with me please read the whole article.
That is not too say the wider issue of linking to infringing content is an open and shut case, the whole linking issue is very much a grey area.
Please note: I am not a lawyer and this is not legal advice
As far as I’m aware there are three solid cases in the US where a court ruled that a website could not link to infringing content.
ULM is a religious organization that often criticized the Plaintiff’s Mormon religion. IR won an injunction against ULM to stop them posting its copyrighted Mormon "Church Handbook of Instructions". ULM’s response was to simply link to other websites which held a copy of the copyrighted works, these websites did not have permission to host the copyrighted book.
The court found ULM’s linking to be ‘contributory infringement’ and therefore it granted a preliminary injunction preventing ULM from linking to the copyrighted "Church Handbook of Instructions".
The court found that ULM’s linking to the unauthorized material was likely to be found "contributory infringement" of IR’s copyright. Therefore, it granted a preliminary injunction preventing ULM from linking to the sites in question.
There are three solid cases in the US where a court ruled that a website could not link to infringing content.
In 1999 Norwegian teen hacker Jon Johansen (aka DVD Jon) created the program DeCSS that descrambled DVDs so that it could be played on PCs running Linux. The program began to become available all over the net.
This resulted in eight major motion picture companies taking three hackers to court in New York resulting in a 2 and a half year battle. In August 2000 the court ruled in favour of the prosecution with a ruling that prevented distribution of DECSS and also prevented linking to any web page where DeCSS resides
The hackers argued that releasing DeCSS on the internet was protected under the First Amendment, which guarantees freedom of speech and the press. Despite this argument the ruling was upheld by the Second Circuit Court of Appeals.
Hightech Electronics Inc operated a website that linked to 30 other sites that sold cable piracy devices. Comcast took Hightech Electronics to the District Court for the Northern District of Illinois which found that the links violated the DMCA.
This decision was partly reached based on the previous case of Universal City Studios v. Reimerdes.
What this means for QSS
Given these past court rulings the outcome for QSS in a court of law would be an injunction to remove all offending links. QSS’s sole purpose is to link to copyrighted TV shows, it therefore ‘actively encourages’ copyright infringement, this is considered ‘contributory infringement’. Also QSS is a profitable site (even if the profit is small) so it may therefore be guilty of ‘vicarious infringement’ meaning that it has a direct financial benefit from infringement.
QSS could simply act upon each takedown notice that it receives and remain alive with a smaller directory of TV shows. However, the takedown notices could simply keep coming until there was nothing left of QSS.
Given these past court rulings the outcome for QSS in a court of law would be an injunction to remove all offending links.
Also the longer QSS remains alive in the US the more likely legal action would be taken against it even if it did follow takedown notices. This is because QSS is probably not covered by the DMCA. The DMCA basically says that if a site receives a Cease and Desist (C&D) or takedown notice and complies with that notice then it will not be held liable for damages, in other words if QSS takes the links down it can’t get sued.
Unfortunately for QSS it is unlikely covered by this DMCA provision because it does not qualify for certain prescribed safe harbor guidelines. In other words it does not act in ‘good faith’ because it is fully aware what it links to is an illegal copy and it intentionally encourages copyright infringement (see requirements to obtain safe harbor).
All this means that Steve Thompson, the owner of QSS, should get out of there while he can to avoid any court battles and hefty legal fees. There is a chance that with a strong legal team he could fight the case and possibly win, but it is unlikely and Steve cannot afford a strong legal team. A court case is almost guaranteed not to end in QSS’s favor.
Move QSS out of the Country
To keep QSS alive and in good health moving out of the US to a country with laws that favor the site would be the best decision. According to Steve Thompson, the owner of QSS, he had difficulty trying to sell the site. When he tried to sell it on Site Point (screenshot) it was taken down. Site Point claimed they received a letter from Fox but would not show it to Steve stating it was confidential.
Therefore Steve is opting to give QSS away for free (plus $50 domain transfer costs) unless he receives a private offer.
To keep QSS alive and in good health moving out of the US to a country with laws that favor the site would be the best decision.
Why Go After QSS? – What about YouTube?
Content owners like Fox do go after sites like YouTube with takedown notices, but as soon as the offending content is taken down it is often uploaded agan shortly after. This cat and mouse game could go on for some time while possible solutions are fought out and decided upon. Meanwhile, YouTube is trying to protect itself with a strong legal team from its new parent company Google, who is also rumored to be paying off content owners.
Going back to why TV companies would address sites like QSS: surfers find it difficult to find and catalogue TV shows on video sharing sites like YouTube because they keep disappearing and reappearing as they are taken down and put back up again. By frequently updating its catalogue of TV Shows with working links, QSS and similar sites facilitate surfers in accessing copyrighted content.
Therefore these TV show directory sites are also a concern for the TV studios, which they consider to potentially threaten legitimate sales. It is no surprise then for these sites to send a letter to QSS that has 341,000 users a month (source).
Who does this Linking Law effect?
Directories of infringing content
Directories that purely exist to link to infringing content will have a short life span if they are located in the US. These sites are guilty of ‘contributory infringement’ and proving the directory was not encouraging copyright infringement would be extremely difficult. The 3 previous cases that were tried in court show this to be true.
In most cases however it will never reach the courts and these directories often close or relocate upon receiving a takedown notice.
Directories that purely exist to link to infringing content will have a short life span if they are located in the US.
Examples that never reached the courts:
- Daily Episodes vs. Fox – Daily episodes was shut down after it was suggested it received take down notices from Fox.
- AllSimps.com vs. Fox – AllSimps.com removed its entire directory of infringing links in fear of retribution from Fox.
- TVLinks vs. MPAA – TVLinks relocated after it was threatened by the MPAA
Community driven directories/websites of infringing content
If a directory/website in the US was purely run by a community and the website had a purpose other than to link to copyrighted material then it would simply have to take down infringing links when served with take down notices. A site like digg.com falls under this category as it lets users control the site in ‘good faith’ so is protected under safe harbor laws.
However, if the site’s sole purpose was to link to copyrighted material the story would likely be different. It could be forced to close down by takedown notices until there was no infringing content left. It could also possibly be sued outright because it is not protected under Safe Harbor laws as it lacks ‘good faith’ . It lacks ‘good faith’ because its only purpose is to link to copyrighted works (see requirements to obtain safe harbor).
Search Engines and infringing content
Search engines fall under the DMCA and Safe Harbor laws since they link to sites in ‘good faith’ so if they remove any infringing links they are not liable. Search Engines such as Google do actively remove links to infringing content when requested, providing supported evidence is supplied. Don’t believe me? Here is an example.
However sometimes it is difficult to judge whether or not certain sites are infringing and Google and other search engines will sometimes refuse to remove web pages from its index. This article outlines some of the difficulties Google faces with the many takedown and Cease and Desist (C&D) notices it receives.
Google and other search engines are big enough to challenge companies that send C&D notices that they do not agree with.
Google vs. Perfect 10 – Linking is Legal for Google?
Perfect 10 is an adult men’s magazine that filed a lawsuit requesting that Google stop creating and distributing thumbnails of its copyrighted images and to also stop linking to websites that contains these images in the Google images search results.
According to a Wikipedia entry:
“Google states that it complied with the notices where it could find the infringement and determine that it was in fact an infringement by removing them from Google Search. However, it noted that it was unable to do this in many cases due to deficiencies in the requests.”
The court ruled that the Google thumbnails were in fact infringing but linking to illegal copies of the images was not in itself infringing. The court said "[infringing] websites existed long before Google Image Search was developed and would continue to exist were Google Image Search shut down"
The court ruled that the Google thumbnails were in fact infringing but linking to illegal copies of the images was not in itself infringing.
Let me apply that statement to QSS: "[infringing] websites existed long before QSS was developed and would continue to exist were QSS shut down". This statement could be applied to the three linking cases that ruled in favor of linking to infringing content as being illegal.
Perfect 10 is appealing against the ruling that linking to infringing content is legal so the battle it not over yet.
Blogs and general websites that occasionally link to infringing content
Many blogs and regular websites that’s sole purpose is NOT to link to infringing content have been served with takedown notices to remove infringing links. UTLM is a resource site that contains information on Mormonism and Christianity. The site was forced by the courts to take down links to third party websites hosting illegal copies of the Mormon "Church Handbook of Instructions".
That means this blog, your blog, or your website could be served with a takedown notice for linking to illegal copyrighted content. If you refused to take the link down you could face a court battle and very well lose based on previous court cases.
That means this blog, your blog, or your website could be served with a takedown notice for linking to illegal copyrighted content.
It is also possible that if you actively encouraged people to visit infringing content through a link on your website you may not be protected by Safe Harbor because you did not act in ‘good faith’. Therefore by simply publishing the link you could face liability (see requirements to obtain safe harbor).
Examples that never reached the courts:
- Columbia vs. Slashfilm – Slashfilm got a DMCA notice of infringement from Columbia Pictures when they posted a link to a leaked Spider-Man 3 trailer.
- Kung Fu Cinema vs. Miramax – Kung Fu Cinema removed links to infringing sites selling illegal DVDs of The Hero after a request from Miramax
The downside of the DMCA
Having read through this article so far it is probably clear to you that if you own a website and received a takedown notice you would begrudgingly take the infringing links down rather than risk liability. A simple takedown letter, whether right or wrong, effectively enforces a law which is currently unclear.
Here is what the EFF senior IP attorney Fred von Lohmann said about the DMCA:
“The DMCA’s ’safe harbors’ for online service providers (OSPs) give linkers a strong incentive to remove links upon receiving a DMCA takedown notice, because if they do so, they are protected from paying damages in any copyright infringement case. That’s one of the problems with the DMCA safe harbors — because OSPs have such a strong incentive to simply comply with takedown notices, courts get fewer chances to decide the underlying copyright questions, like whether linking to stuff on YouTube is infringing. So things stay murky. "
A simple takedown letter, whether right or wrong, effectively enforces a law which is currently unclear.
In fact there have even been cases of fake DMCA notices being sent to website owners to encourage them to remove content, for example Michael Crook.
Is this linking law immoral?
The internet is built upon sharing information, freedom to link to other information, and freedom to talk about whatever you want. By restricting people from linking to infringing content you restrict these practices.
This is known as the Chilling Effect, whereby “speech or conduct is suppressed or limited by fear of penalization at the hands of an individual or group. For example, the threat of a costly and lengthy lawsuit might prompt self-censorship and have a chilling effect on free speech.”
Website owners could become overly fearful of penalization and restrict what they link to as a result of this fear. it can be argued that by knowingly linking to a site with infringing content then you are not protected by safe harbor laws (see requirements to obtain safe harbor). Therefore under the current murky laws thousands upon thousands of blogs and websites could be taken to court without being served with a takedown notice.
Wikipedia already has a policy to not link to anything that might be potentially infringing. There are so many web pages that could be potentially infringing which drastically impairs the sharing of information on sites like Wikipedia.
The philosphy of the web is also reflected in the offline world where people can talk about what they want, share information, and tell people where to find more information.
If linking to infringing content on the web is illegal then publishing a link in a Newspaper, a book, or simply telling your friends must also be illegal.
I’m pretty sure I’m allowed to tell my friends that a shop in town sells cheap illegal DVDs. But if this ‘contributory infringement’ argument is true then if someone is caught buying an illegal DVD then the person who told them about it is also committing a crime. What about a Newspaper that reported on the illegal DVD store, would they be guilty of contributory infringement too?
If linking to infringing content on the web is illegal then publishing a link in a Newspaper, a book, or simply telling your friends must also be illegal.
Let’s say I decided to go out around town wearing a T-Shirt saying “Dodgy Harry on Market Street sells illegal DVDs for cheap”. If I then received a DMCA ‘take off your T-Shirt’ notice and I didn’t take it off I could be taken to court and lose because I ‘contribute’ to copyright infringement. I somehow don’t see that happening, what will actually happen is Dodgy Harry will be prosecuted as he is the one infringing copyright. I will have to get a new T-Shirt saying “Dodgy Harry is in Jail for selling illegal DVDs, but don’t worry his brother has a mail order service” and wait for my next ‘take off my T-shirt’ notice.
Can this be challenged?
Yes this can be challenged especially given this linking law is still a grey area. Google has already made substantial progress in the right direction when the United States District Court for the Central District of California ruled in favor of Google stating linking in itself is not illegal. But that is still one isolated case that is being appealed with 3 other previous cases stating the opposite.
The Reality of it all
It won’t solve the problem
By targeting US copyright infringers and those that link to copyright infringement the content owners will just force infringement to move to countries with more preferable laws. This does not solve the problem at all. As Steve Thompson of QSS said:
"What they’re trying to do is like getting a bubble out from behind wallpaper. If you try to squash the bubble under your thumb, it just moves."
Content owners will just force infringement to move to countries with more preferable laws
This still won’t stop people putting infringing links on their website in the first place, the chances of receiving a DMCA takedown notice is pretty slim and even if they do receive a notice they will just take the link down. The chances of recieving direct legal action without a DMCA takedown notice is even smaller.
Address the issue of fair distribution
The is here to share information and is built upon the freedom to link to anywhere you want. Copyright laws in general restrict the sharing of information anyway.
The answer to this widespread copyright infringement is improving distribution of video (and other media) to make it fair and affordable.
It is my belief that copyright laws currently lie in the favor of content owners which, in the interest of profits, limits distribution and the exchange of information. This is what leads to illegal copies of copyrighted content in the first place. While piracy will always exist at some level the current widespread extent of piracy is a reflection on consumer’s discontent with the unfair distribution of content.
Bringing this back to internet video, there is no fairly priced way to watch content online that is not packed with restrictive DRM forcing consumers to pay for the same content twice. The answer to this widespread copyright infringement is to improve the distribution of video (and other media) by making it fair and affordable.
- Copyright: Sacred Text, Technology, and the Dmca (Exemplar Juridicum: American Thought on Global Legal Issues)
- Links and Law
- Dmca: The Digital Millenium Copyright Act
- Who Controls the Internet?: Illusions of a Borderless World
- Cyberlaw Text and Cases
- Practical Internet Law for Business
- Internet and the Law: Technology, Society, and Compromises
- Internet Law
- Internet and Computer Law, Second Edition (American Casebook Series)
Update: Not long after publishing this I received an email from Dr. Stephan Ott, an expert on linking laws. Click here to read it.
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