Hyperlinks represent a critical piece of infrastructure on the web. Without hyperlinks, finding websites would be next to impossible. While common sense suggests there are few legal issues surrounding hyperlinks given the widespread use, the truth is the law struggles when determining how intellectual property rights apply to Internet infrastructure. In this post, we look at a simple question – do hyperlinks infringe copyright under the laws of the United States?
Copyright Law And The Internet
The Copyright Act of 1976 governs copyright in the United States. The Internet was not exactly a significant presence in society in 1976, which suggests Congress drafted the prevailing copyright law in the country without considering a single Internet-related issue. While the Copyright Act has been updated and supplemented since 1976, the relationship between copyright and hyperlinks is still an awkward one.
There are two key issues to consider when evaluating whether we can classify hyperlinking as copyright infringement. The first is whether there is a sufficient volume of content at issue to qualify for copyright protection. As a general rule, a short phrase is not copyrightable unless it represents a novel turn on words. For example, the three words Nike slogan, “Just Do It” cannot be copyrighted. Since the anchor text in hyperlinks tends to consist of between one and three words, infringement claims focused on the anchor text in links are almost non-existent.
Of course, one must then look at the actual page to which the hyperlink connects. For infringement to exist, the accused party must copy the content in question. Courts have been very hesitant to rule that a link constitutes the copying of a copyrighted work. Perhaps the dominant case in this arena is Ticketmaster Corp. v Tickets.com, Inc.
A. Ticketmaster Corp. v Tickets.com, Inc.
In Ticketmaster Corp, a federal court dealt with the question of whether hyperlinking violated copyright. Tickets.com used a robot to pull information about entertainment events off of various sites including Ticketmaster.com. Software then added the data to a database of original listings consumers could use to search for tickets to events. Upon making a selection, the consumer was then guided to third-party sites, including Ticketmaster.com, to make purchases. Tickets.com used deep linking to send the consumer directly to the specific event page on the Ticketmaster site, bypassing the home page. Ticketmaster claimed these scraping and linking practices constituted copyright infringement.
B. Landmark Ruling
In a landmark decision, U.S. District Judge Harry Lindley Hupp ruled against Ticketmaster. Judge Hupp found that hyperlinking alone did not violate the Copyright Act because the links did not duplicate copyrighted content on the Ticketmaster site even with the deep linking copyright claims. The court further ruled that it is not copyright infringement to take basic facts from publicly available web pages and use those facts, provided that the party in question is not copying the expression and method of presentation:
[H]yperlinking does not itself involve a violation of the Copyright Act … since no copying is involved, the customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get a reference to particular items, albeit faster and more efficiently.
[Ticketmaster] contends that, although the URLs are strictly functional they are entitled to copyright protection because there are several ways to write the URL, and, thus, original authorship is used. The Court disagrees. A URL is simply an address, open to the public, like the street address of a building, which, if known, can enable the user to reach the building. There is nothing sufficiently original to make the URL a copyrightable item, especially the way it is used.
Commentators lauded the Ticketmaster case as a definitive determination that hyperlinking doesn’t constitute copyright infringement. While these views are correct from a copyright perspective, there are two other potential legal challenges companies can make against hyperlinks.
Trademarks and Linking
While companies can rarely copyright short phrases, they can be trademarked. For example, Nike trademarked the “Just Do It” slogan. Hyperlinking to a website using the phrase could potentially create a trademark infringement scenario. Unfortunately, there is no way to guard against the potential threat without running trademark searches for every link you create.
The good news is most companies view the use of their trademarks in links as a branding opportunity and are unlikely to claim infringement. Still, publishers should keep the trademark issue in mind if you intend to publish a link to a company in a critical piece. Even then, the fair use defense should provide you with protection.
Hyperlinking As A Trespass of Chattels
Trespass of Chattels is a legal claim in which Party “A” asserts Party “B” is interfering with the lawful possession of the property by Party “A.” The theory originated hundreds of years ago. However, it was used primarily when physical property, such as farm equipment, was at issue.
Searching for a method to defeat unwanted hyperlinking, creative lawyers have argued the use of hyperlinks or robots to scrape sites can constitute a trespass of chattels. Such assertions represent an obscene extension of this legal theory, but several courts have proven willing to apply the concept to the web.
A. eBay Tries A New Approach
In Ebay Inc. v. Bidder’s Edge, Inc., eBay did not ask the court do hyperlinks infringe copyright. Instead, eBay asked the federal court to determine if Bidder committed a trespass of chattels when it scraped eBay. In ruling on the case, the court found:
Bidder’s Edge argues that its searches represent a negligible load on plaintiff’s computer systems, and do not rise to the level of impairment to the condition or value of eBay’s computer system required to constitute a trespass. However, it is undisputed that eBay’s server and its capacity are personal property, and that Bidder’s Edge searches use a portion of this property. Even if its searches use only a small amount of eBay’s computer system capacity, Bidder’s Edge has nonetheless deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another’s personal property. Accordingly, Bidder’s Edge actions appear to have caused injury to eBay.
The Bidder’s Edge decision stands as good law. However, commentators have roundly mocked it. Although eBay prevailed in this case, it’s hard to foresee any court supporting a trespass of chattels claim in any scenario where only a few links exist. On the other hand, the claim applies to situations where people perform extensive scraping of a site.
Do hyperlinks infringe copyright? The use of one or two links incorporating short phrases rarely should give rise to a justifiable complaint. However, one must be careful about using trademarked phrases as anchor text or scraping and building large farms of links.
Richard A. Chapo, Esq.
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