On the internet links are the means by which users navigate, retrieve and access information on the web. It seems counter-intuitive that their use could give rise to exposure to legal liability.
However website owners have on occasions been exposed to legal liability for links which appear on their website. Therefore website owners using images or third party content in the form of text should be aware of the evolving internet jurisprudence in this area. Linking to another website which carries infringing files involves some degree of legal risk under Australian law.
Whilst there havn’t been many decisions regarding linking and framing technologies on the internet in Australia, overseas case law indicates the complexity of this area of law and the unique technical and legal considerations involved.
Linking and framing technologies have created a whole new potential sphere of legal liability. Whether or not a link or frame is used in a way that gives rise to copyright infringement or any other breach of law depends on how the relevant link is used.
Liability may not necessarily be confined to accusations of copyright violations. Most of the existing case law surrounding the legality of linking emanates from the United States, whose decisions have been influential in shaping Australian law.
Whilst there have only been a few decisions on the legality of linking under copyright law, there is still a degree of uncertainty as to whether linking can constitute copyright infringement.
Whilst it isn’t normally isn’t regarded as an infringement of copyright to create a traditional hyperlink, cases have arisen where Courts have held that it is an infringement of copyright to create a link where it contributes to unauthorised copying of a copyrighted work.
The Full Court of the Federal Court of Australia has held that a party can be held liable for posting hyperlinks on their websites which result in infringement of the rights of copyright owners in their work. See Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187)
Cooper owned a website which contained hyperlinks to music files which appeared on other websites which he didn’t either own or operate. When users clicked on one of the music file hyperlinks on his site, the music files stored mainly as mp3s on the other websites were transmitted directly to the user’s computer from the other websites.
The music companies who owned copyright in the sound recordings of the music files transmitted brought action against Cooper and others for authorising infringement of their copyright. The Court found that Cooper had the power to prevent the infringing activity which was occurring as a result of the hyperlinks on his website. As the Cooper case demonstrates, a website owner, hoster or Internet Service Provider is more likely to be held responsible for creating a link where they either knew, or could reasonably be assumed to have known of the unauthorised copying, and either encouraged it or did nothing to prevent it occurring.
Cooper argued he had no power to prevent users from using his website to access remote websites to copy the music files, but this argument was rejected by the Court.
It is necessary to distinguish between primary acts of copyright infringement and contributory or vicarious copyright infringement in the United States or authorisation or secondary liability in Australia.
Direct infringement occurs where a party directly infringes the copyright owner’s copyright in a work. On some occasions, the party who has committed an act of direct infringement may not be able to be identified, so the copyright owner may wish to take action against the website operator, hosting company or upstream ISP for their role in encouraging the infringing use of the offending webpage.
The Cooper decision shows that website owners need to be careful about the links provided on their website to other websites, and in particular whether their website could be used to facilitate the unauthorised copying of copyrighted materials. Not only was Cooper held liable for authorising copyright infringement, but the court also held the ISP and a Company Director of the ISP liable for their participation in the operations of the website.
It is recommended that website owners include a linking disclaimer on their website waiving liability for any potential unauthorised activity occurring on a website to which you link. However it is important to recognise that the presence of such a disclaimer won’t necessarily afford you a defence in respect of liability for infringing links.
There are various linking practices and technologies which may give rise to potential liability, including deeplinking, inline linking/framing, metatagging, and infringing hyperlinks.
Deeplinking means creating a link that bypasses a website’s home page, navigating to a page within a website. There is debate as to whether the term is redundant, in that it conveys no more than the term ‘hyperlinking’ does. Website owners find deeplinking objectionable as they often want their visitors to arrive at their home page first because their advertising appears on the homepage. A further reason may be that the home page provides a signpost to users to a website’s terms and conditions and/or other important documents such as their privacy policy.
Website owners have taken legal action on the grounds of copyright infringement and other violations in response to the practice of deeplinking. In Ticketmaster v Microsoft, Ticketmaster brought action against Microsoft for deeplinking to their ticket purchasing page for trade mark dilution and unfair competition. Microsoft countered by arguing that Ticketmaster impliedly consented to linking including deeplinking, seeking a ruling from the Court regarding the legality of hypertext linking. Ticketmaster’s objection was that Microsoft was bypassing their advertising and Ticketmaster wished to assert control over the traffic to their website.
There was no legal finding on the legality of deeplinking as the case settled, however the issue of deeplinking arose again in Ticketmaster v Tickets.com, in which Ticketmaster sought judgement for copyright infringement caused by the defendant deeplinking to one of the their event pages containing copyrighted information. The Court denied Ticketmaster’s request for relief, ruling the linking was not a violation of copyright and that it was clear to the user that the page linked to belonged to Ticketmaster.
There have been cases where deeplinking has been held to be a violation of copyright. In Live Nation Motor Sports Inc v Tripleclamps the Court ruled that the Defendants’ linking to live internet webcasts of racing events was a violation of copyright the Plaintiff held in their audio webcasts, citing the case of National Football League v PrimeTime 24 Joint Venture. In the PrimeTime case, the defendant was precluded from uplinking copyrighted material and broadcasting satellite transmissions of the NFL’s weekly broadcasts of football games to Canadian viewers.
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