A Copyright Claim Is Only As Good As Its Weakest (Hyper)Link.

It has long been assumed by the legal literati that the mere sending of a link in an e-mail or the embedding of a link in a blog post, which link directed the user to a copyrighted work of someone other than the linker, did not constitute direct infringement of the copyrighted work.  However, there was very little actual case law on the subject.  Last month, the federal district court for the Southern District of New York stated unequivocally that: "As a matter of law, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement."

In Pearson Education, Inc. et al v. Ishayev and Leykina, the plaintiffs were publishing companies that sold educational material and manuals for which the plaintiffs owned the copyright.  Apparently, one the defendants uploaded such material to a cloud server controlled by the defendants.  Both defendants would then advertise the sale of the material.  When someone bought the material, the defendants would either e-mail the purchaser a zip file with the material in it or would e-mail the purchaser a hyperlink to the file on the server, which would allow the purchaser to download the file.

The defendants filed a motion for summary judgment on several of the counts, including the allegation that the act of sending a link to a copyrighted work that allowed the receiver to illegally access the material constituted infringement.

Although most of the other stuff that the defendants did obviously was an infringement (e.g. sending the works in a zip file), the court held that merely sending a hyperlink did not amount to infringement. 

The court likened a hyperlink to the "...digital equivalent of giving the recipient driving directions to another website on the Internet. A hyperlink does not itself contain any substantive content; in that important sense, a hyperlink differs from a zip file. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner's five exclusive rights..."

However, the court said that the result could be different if, in addition to sending the hyperlink, the defendant had actually uploaded the copyrighted material to the cloud server himself.  Since the court found that there was no evidence that would allow a jury to find that one of the defendants had uploaded the material, the court granted summary judgment to that defendant on that limited issue.

Whew!  So, everyone of my blog posts is safe to that extent.  We won't discuss issues relating to some of the pictures.

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Comments (2) Read through and enter the discussion with the form at the end
Karli@HomeCity Real Estate - September 11, 2013 1:27 PM

Good to know! There are so many fine lines in Technology Law... it's good to keep up with them!

Handal Morofsky - October 21, 2013 5:33 PM

This is a subtle, but consequential distinction. The subject of emailing directions versus content has been held to not infringe on a copyright owner's exclusive rights under 106, in MyPlayCity, Inc. v. Conduit Ltd., No. 10 Civ. 1615(CM), 2012 WL 1107648, at *12 (S.D.N.Y. Mar. 30, 2012).
Also, in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1161 (9th Cir. 2007) the court held that providing HTML instructions directing someone to a site containing copyrighted images did not constitute infringement of the owners rights, drawing a distinction between containing a link with instructions vs. showing a copy of the copyrighted material.

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