Linking May Constitute Copyright Infringement but Only in Extreme Cases

At iBlog, La Vida Lawyer asked a question about the legality of deep linking.  As I mentioned, the general rule is set out in the Tickets.Com case which says that deep linkingdoes not constitue copyright infringment.  The judge said:

Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) 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.

Some still believe, however, that there may be legal problems associated with deep-linking but I’m pretty confident that the general rule will prevail even though exceptions may crop up.  Law professors love for these exceptions and make it a point to ask them in exams.  (Sorry, it’s what we live for!)

More recently, a case decided by a federal court in Indiana said that linking may constitute infringement but only if the encourages the use of infringing sites by establishing links to them. In that case, the defendant (FuneralDepot.Com) was not authorized to use the plaintiff’s (Batesville Services) marketing materials.  So the defendant found a third party (The Veteran’s Cremation and Burial Society) who was authorized to use those materials but had not established web pages for that purpose.  The defendant then set up those web pages using the third-party’s URL and linked thumbnail images of the marketing materials to the full-sized images located in the third-party’s site (an earlier case had already confirmed that the use of thumbnails which link back to licensed images did not constitute infringement).  In fact, the defendant controlled and regularly updated the third-party’s pages which included the defendant’s prices and contact information.  The court says that in extreme cases, this type of linking may constitute copyright infringment and left open the possibility that this might be one of those cases. 

The decision was rendered to resolve a summary judgement and did not constitute the final resolution of the case on its merits.  The defendant claims that the third party was impliedly authorized to use the materials. In the absence of a written agreement, the court still has to receive evidence. 

So, the bottom line is that linking (and deep linking) is okay so long as you’re not exploiting the linked-to site’s content in a way that infringes on someone’s copyright.  And those are extreme cases.  So link on, fellow bloggers.