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?
May – December Romance
Copyright in the United States is governed by the Copyright Act of 1976. The Internet was not exactly a major presence in society in 1976, which suggests the dominant copyright law in the country was drafted 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 hyperlinking can be considered 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 word 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 anchor text in links are almost non-existent.
Of course, one must then look at the actual page being reached via the hyperlink. For infringement to exist, the content in question must be copied by the offending party. 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.
In Ticketmaster Corp, a federal court was confronted 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. The information was then incorporated into 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.
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 when deep linking copyright claims were made. 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 expression and method of presentation are not copied:
[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 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.
The Ticketmaster case was lauded by commentators 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 short phrases rarely can be copyrighted, they can be trademarked. For example, the “Just Do It” slogan used by Nike is trademarked. Hyperlinking to a website using the phrase could potentially create a trademark infringement scenario. Unfortunately, there really 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, such use should be protected under a fair use exception.
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 property by Party “A”. The theory originated hundreds of years ago and was used primarily in situations where 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 a number of courts have proven willing to apply the concept to the web.
In Ebay Inc. v. Bidder’s Edge, Inc., a federal court was asked to determine if a trespass of chattels occurred when Bidder’s Edge scraped the Ebay site. 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 cause injury to eBay.
The Bidder’s Edge decision stands as good law, but has been roundly mocked by many legal commentators. 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 is clearly applicable to situations where widespread scraping of a site is undertaken.
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.
1. United States Copyright Act of 1976.
2. Ticketmaster Corp. v Tickets.com, Inc. (CD Cal, Mar. 27, 2000, No. CV99–7654 HLH) 2000 US Dist Lexis 4553
3. Ebay Inc. v. Bidder’s Edge, Inc. 100 F. Supp. 2d 1058 (N.D. Cal., May 24, 2000)