Copyright Issues - Linking to Articles

Practically speaking, finding legal trouble from a mere hyperlink is pretty unlikely. There are two reasons for this.

1) It is usually easier, faster and (in the case of a lawsuit) more lucrative to go after the person who is hosting the infringing material. If you can get the material itself removed, the links become moot as they point nowhere.

That is a much better strategy.

2) The legality of linking to infringing material is relatively untested and the bar for improving infringement is MUCH higher (as you'll see, making such a suit less likely to succeed.

So, despite what is below, the risk is actually fairly low, especially if you have no way of knowing that the work is infringing.

That being said, there are theoretical ways that a link could be infringing, namely if a court found that you were committing contributory copyright infringement, meaning that you were not the infringer, but that you are aiding the infringement in some way.

Contributory copyright infringement requires that you have advance knowledge of the infringement, something that would likely be difficult to prove.

There have been some situations where sites have found themselves in trouble for merely linking but these typically involve very egregious situations, such as "free warez" site that doesn't host the files but offers links to an FTP server.

If you wanted, you could designate yourself a DMCA agent under Section 512(d), which protects information location tools such as search engines, and have individuals or companies who are wanting to complain about an infringing link contact you. This may offer some legal protection, but it will not protect you if you know that the material is infringing.

On that note, should you be contacted by someone asking you to remove an infringing link, definitely do so. First off, you should always follow a cease and desist unless it is either A) Clearly false or B) You have advice from an attorney to ignore it.

Second though, once they have notified you of the infringement, you can not say you were unaware of it and their case of contributory copyright infringement gets much stronger.

Despite that, you have to work pretty hard to make linking an obvious infringement and something that is likely to cause legal trouble.

Still, I do make it my personal policy to not link to any material I suspect is infringing, but I doubt anyone can be 100% certain everything they have ever linked to is not an infringement.

I hope that helps, let me know if you have any further questions!

Jonathan Bailey - plagiarismtoday.com

You might also want to take a look at Chilling Effects FAQ on linking, it provides some addition detail:

http://www.chillingeffects.org/linking/faq.cgi

Jonathan Bailey - plagiarismtoday.com

Jonathan,

Just wanted to say thank you for taking the time to reply and for providing such excellent advice, it really is appreciated.

I run a TV/Movie site and we are sent 100's of promotional stills and script snippets each week which we post and credit where applicable. In about 1% of these cases we get a Cease & Desist notice for some image that was not obtained correctly etc which we then remove.

Your help clears a lot of things up for me.

Could I ask 1 more slightly Off-Topic question: I recently had a case where I had to travel to Dubai and was without email for 5-6 days. When I returned I found a C&D email. How long in opinion is a reasonable amount of time to be given to process a C&D notice before the person sending it can start to try to follow up with actions.

Speaking of reasonable time... For some reason the "Notify me of follow-up comments" function is not working. I just now saw this.

To answer your question though, I don't know of any hard rule on this matter. The DMCA requires that a host act "expeditiously" to remove infringing materials but I haven't seen any hard definition for what that means.

I think that it is more important that you show good faith and respond as quickly as you can than it is to set a hard deadline for removing such works. If you were gone for nearly a week and returned to a C&D and handled it as quickly as possible, I don't think that anyone would fault you for that so long as you can show you were out of the country.

Besides, six days it not terribly long in general. Google can take weeks to respond to a DMCA notice and no one seems prepared to sue them over it.

I think it is more important to act in good faith than it is to set a timetable. Lawsuits regarding ignored C&Ds typically don't form until well over a month after the letter is filed and, usually, the company will send a second and/or third notice before taking action.

Still, if you're out of email touch, an autoreply is probably in order along with a backup contact for any emergencies. It just makes these things go much more pleasantly.

Hope that helps!

Jonathan Bailey - plagiarismtoday.com

Thanks again Jonathan, the out of office notifier is a great idea. I must use that more often when out of email contact.

Thanks you for your great reply again.