Free Expression-Copyright
Linking to Copyrighted Materials
If you publish your work online, you are already in the practice of using links to enhance your content. The Web's basic architecture relies heavily on the ability of webpages to link to other pages to allow natural navigation between related content. It is hard to imagine the smooth functioning (or even continued existence) of the Web without hypertext links that act as a reference system identifying and enabling quick access to other material. Fortunately, courts generally agree that linking to another website does not infringe the copyrights of that site, nor does it give rise to a likelihood of confusion necessary for a federal trademark infringement claim. However, different kinds of linking raise different legal issues, and the law is not entirely settled in all of these areas. Moreover, some linking activities may expose you to liability for contributory copyright infringement or trafficking in circumvention technology in violation of the Digital Millennium Copyright Act (DMCA).
Types of Links
Deep Linking: The most straightforward case is so-called "deep linking," which refers to placing a link on your site that leads to a particular page within another site (i.e., other than its homepage). No court has ever found that deep linking to another website constitutes copyright or trademark infringement. Therefore, you can link to other websites without serious concerns about legal liability for the link itself, with the exception of activities that might be contributory copyright infringement or trafficking in circumvention technology (discussed below).
Inline linking: Inline linking involves placing a line of HTML on your site that so that your webpage displays content directly from another site. We now commonly refer to this practice as embedding. For example, many bloggers embed videos from YouTube on their blogs to illustrate a point or initiate discussion. While there is some uncertainty on this point, a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (2007). Other courts may or may not follow this reasoning. However, the Ninth Circuit's decision is consistent with the majority of copyright linking cases which have found that linking, whether simple, deep, or inline, does not give rise to liability for copyright infringement. For discussion of these cases, see The Internet Law Treatise. In addition, merely using an inline link should not create trademark liability, unless you do something affirmative to create the impression that you are somehow affiliated with or endorsed by the site to which you are linking. Thus, embedding media in your online work should not expose you to legal liability, with the possible exceptions discussed below.
Framing: Framing refers to the practice of dividing a web page into multiple sections that use HTML code to pull content from different sources. The law should treat framing much like inline linking for purposes of copyright infringement (see discussion immediately above), but no case has considered the issue of framing in the context of copyright law. Framing potentially raises trademark problems. Depending on how you design your page, a user might be confused into believing that all of the source material is yours. Some plaintiffs have sued websites for framing under trademark and related areas of law, but most cases have settled and the law remains unclear.
Given the uncertain state of the law, it is best not to knowingly link to sites hosting circumvention software. To be on the safe side, you should also remove user-generated content that links to such postings. This cautious approach may put websites that depend upon high levels of user interactivity in an uncomfortable position, as illustrated by the Digg.com user "revolt" in May 2007.
