Website Linking – Are You Gaining More Profits or Elevating Your Risks?

A company’s website is a key part of its marketing strategy. In many cases, it is the main avenue for customers and clients to learn about and transact business with the company. For this reason, it is important to ensure the content on your company’s website complies with all applicable laws, including federal copyright law.

Copyright law applies to a website’s content in terms of both text and graphic, such as photos and videos. Content can be included by (a) directly posting the content, (b) linking to content on other websites, or (c) framing content from other websites. Whatever method is used to add content to your website, it is important that it does not infringe on someone else’s copyrights. The following is a brief discussion of these three forms of content additions, and how to avoid copyright violations when using them.

1. Direct Posting. Direct posting is a method whereby content is included on a website without linking to another website in any way. Original content developed by you, the website owner, may be freely posted. If your website includes content created by others, however, the content must be either in the public domain (not protected by copyright) or you must have a license in order for the content to be legally posted on your website. If the content is copyrighted, a license to use such content must be obtained from the copyright owner. A careful review of any license must be done to ensure the proposed use does not violate the license terms. For example, licenses for images purchased from a stock photo site can be very restrictive.
2. Linking. Basic linking is done by including a hyperlink that leads the reader to the home page of (linking), or a particular page within (deep linking), another site. Linking is a generally-accepted practice since it accomplishes the main purpose of the internet – the quick exchange of information. Thus, neither basic linking nor deep linking constitutes copyright infringement.

Another type of linking is in-line or embedded linking where a website’s HTML code is written to display content directly from another website. The content is not directly posted as in A, above, but instead remains on the server of the linked-to website.

The most famous case concerning embedded linking is Perfect 10, Inc. vs. Google, Inc., 508 F.3^rd 1146 (9^th Cir. 2007), where it was held that Google’s use of embedded linking to Perfect 10’s images in its search results was not copyright infringement. The court found that the lines of HTML text creating the link did not equal an image, and therefore was not direct infringement. The holding in Perfect 10 indicated that infringement does not occur if the copied work is not physically saved on the copier’s server.

Although Perfect 10 has been the applicable law for over ten years, two recent cases – Goldman vs. Breitbart News Network, LLC, 302 F.Supp. 585 (S.D.N.Y. 2018), and Free Speech Systems LLC v. Menzel, 390 F.Supp. 3d 1162 (N.D. Cal. 2019) – have placed the application of Perfect 10 into question. Both cases ruled that the holding in Perfect 10 should be narrowly construed and only applies to embedded links used by search engines. The cases focused greatly on how the information was displayed on the copier’s website and the commercial nature of the sites. Based on these cases, although they have not been tested in other jurisdictions, potential risks remain when using embedding content. Careful consideration must be given before embedding photos and videos on your website.

1. Framing. Similar to embedded linking, framing involves dividing a webpage into multiple sections using HTML to pull and display content from different sources. Framing is more likely to be an infringement, however, if the copyrighted material is modified without authorization, or if customers are confused about the association between the two websites or the source of a product or service.

Another issue with embedded links or framing is the possibility of contributory copyright infringement, which arises when a website knowingly links to content that infringes on other works. The court in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) stated that “[o]ne who knowingly induces, causes or materially contributes to copyright infringement by another, but who has not committed or participated in the infringing acts him or herself, may be held liable as a contributory infringer if he or she had knowledge or reason to know, of the infringement.” (citing Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984))

As discussed, the potential risks associated with website linking can be dire. Damages awarded by the courts for copyright infringement range from (a) actual damages suffered by the copyright owner, (b) an amount equal to the infringer's profits, and/or (c) statutory damages of $750 to $30,000 per infringement, increasing to $150,000 per infringement if it is found to be willful. With that much on the line, all content on your website should be vetted and cleared before posting. Copyright clearance is best handled with the aid of a qualified attorney who can advise you on copyright issues and help negotiate any copyright licenses you may need.