Can A Link, By Itself, Be Copyright Infringement?

from the someone-please-explain dept

Mon, Feb 23rd 2009 10:24am — Mike Masnick

A report in Billboard Magazine mentions that the IFPI and the MPA (the global versions of the RIAA and the MPAA respectively) have successfully been able to get ISPs in Mexico to take down 35 blogs which they say contributed to music and movie piracy. Specifically, they charge that the blogs had thousands of "infringing links." Of course, that leads to a rather obvious question: what the hell is an "infringing link"? Is it a link to infringing content? If so, then Google and pretty much any search engine is equally guilty. Simply linking to something, by itself, is not and should not be considered infringement.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: blogs, copyright infringement, links, mexico
Companies: ifpi, mpa, mpaa, riaa

26 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

ChurchHatesTucker (profile), 23 Feb 2009 @ 10:37am

The frak?
I'm amazed that the courts of various countries are just fine with the *AAs' attempts to foist their responsibility to police their own properties onto others.

The *AAs are the ones who love the "IP equals Real Property" argument, yet nobody would take seriously an attempt to say, hold a bus company responsible for trespassers because they took a bus to the property they trespassed upon.
[ link to this | view in chronology ]
- Vincent Clement, 23 Feb 2009 @ 10:40am
  
  Re: The frak?
  Money talks.
  [ link to this | view in chronology ]
  - :Lobo Santo, 23 Feb 2009 @ 10:56am
    
    Re: Re: The frak?
    And bullshit walks!!
    
    (What the hell does that mean, anyway?)
    [ link to this | view in chronology ]
    - Anonymous Coward, 23 Feb 2009 @ 11:30am
      
      Re: Re: Re: The frak?
      "Money talks and bullshit walks" means don't bother approaching me for a favor unless you have money; making your case by any other means (or bullshitting in the vernacular) will not work.
      
      In the case of the **AAs, it's pretty appropo. I guess we just have to hold out until they run out of money!
      [ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2009 @ 11:12am

Sounds to me that the issue wasn't just linking to content, but rather actively promoting the download of that content.
[ link to this | view in chronology ]
- ChurchHatesTucker (profile), 23 Feb 2009 @ 11:27am
  
  Re:
  "Sounds to me that the issue wasn't just linking to content, but rather actively promoting the download of that content."
  
  From that link? It sounds like nothing of the kind, AC.
  [ link to this | view in chronology ]
Michael, 23 Feb 2009 @ 11:26am

Legality?
I'm divided on this my self.

There are straw-men arguments that can be made but really look at the real facts. A link is just a pointer to where information of some kind -may- exist.

Does knowing that information may be somewhere violate laws? It shouldn't.

Does telling someone else that information might be at a location you know about violate laws? I don't see how it should.

Does getting information that has been granted a temporary monopoly on duplication by your government from someplace violate laws? It probably does.

A more interesting question: If you download something without knowing what it is, and find out it's something you didn't want, (and delete it) have you violated the law?

Que sensational but somewhat plausible example:

What if that automatically happens when you open an HTML email? Which some foreign group looking to cause disruption sent out through a spam-bot net so that hundreds of thousands of innocent people would 1) see child porn. 2) be logged as having seen said porn before the server was scheduled to be raided.

(The above argument is why I default to plain text email.)
[ link to this | view in chronology ]
Lampshire, 23 Feb 2009 @ 11:35am

I think it's a matter of intent. Google and other search engines are simply trying to catalogue the web, while these blogs were probably trying to promote and aid in the act of piracy with their links. Sites like Google and YouTube and such can also be used to aid in piracy, but as that is not their intent and as they make an effort to comply with copyright law, it's much harder to blame them. So I disagree; I say even linking to something can be infringement, as it promotes and aids in infringement.
[ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2009 @ 11:40am

Link as a fact
Well if you assume a link is the factual description of a location of some thing then the link cannot be infringing as you cannot copyright facts.
[ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2009 @ 11:43am

I propose that we support the *AAs in this concept and extend it by applying the transitive property of website links. If website W1 links to website W2 and website W2 links to infringing content C1 then W1 is guilty along with W2.

W1 links to W2 AND W2 links to C1 => W1 links to C1

We can use this for multiple purposes. For example we can find a series of links from *AA websites to infringing content and demand the *AA websites shut down. We can then go after all sites that link to *AA sites by applying the transitive link property again. Eventually this will completely orphan the *AA websites with no outbound or inbound links.
[ link to this | view in chronology ]
- Chuck Norris' Enemy (deceased), 23 Feb 2009 @ 12:48pm
  
  Re:
  I am sure the *AA would love to have a seven degrees of separation thing with links to "infringing" copyrighted material.
  [ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2009 @ 12:39pm

Infrinnging links now?
Wow, these guys are nuts. the RIAA, MPAA, MPA, IFPI ect... I hope one day they decide to block the whole internet. then there will be a revolt and then BOOM, no more of them!!!!
[ link to this | view in chronology ]
Nick, 23 Feb 2009 @ 1:25pm

Old news
Us courts have ruled that links can be infringing under the DMCA. See Universal v. Reimerdes:

Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment.
The case was appealed to the U.S. Court of Appeals for the Second Circuit, attracting a large number of amicus curiae briefs on both sides. After a hearing on May 1, 2001 a three judge panel (Judges Newman, Cabranes and Thompson) upheld Judge Kaplan on November 28. In particular the Second Circuit ruled that linking on the Internet happened so fast that it could be restrained in ways that might not be constitutional for traditional media. The defendants chose not to appeal to the U.S. Supreme Court.
[ link to this | view in chronology ]
Anonymous Coward, 23 Feb 2009 @ 1:52pm

The key words here are "contributed to music and movie piracy"
The blogs in question clearly directed traffic with the blogger's knowledge. Google on the other hand automatically generated the link (also loosely covered by a 'common-carrier' protection legal defense strategy).
Lastly it comes down to money. Google would fight it and win. The IFPI and the MPA (the global versions of the RIAA and the MPAA respectively) have to build up a case history prior to going after Google.
[ link to this | view in chronology ]
Weird Harold, 23 Feb 2009 @ 2:50pm

It all comes down to intent
There is an important point here: If you know something is stolen, and you help the person who stole it to resell it, then you broke the law. Linking to something that would specifically violate copyright (say like a movie recorded with a camcorder, or a stolen copy of an unreleased album) is a pretty clear indication of intent.

More so, if the blog in question has advertising on it, and profits from it's traffic (and perhaps a traffic increase because of the links to stolen content) then they are doing so for financial gain.

It's the point everyone forgets about places like Pirate Bay: they all sing kumbaya and claim it's all about making everyone equal, in the meanwhile the owners are stuffing millions of euros into private offshore accounts. Don't fall for the hype, someone is making money off the stolen content.
[ link to this | view in chronology ]
- ChurchHatesTucker (profile), 23 Feb 2009 @ 4:27pm
  
  Re: It all comes down to intent
  "Don't fall for the hype, someone is making money off the stolen content."
  
  So, someone has figured out a way to monetize it properly. Someone else should be taking notes.
  [ link to this | view in chronology ]
- Anonymous Coward, 23 Feb 2009 @ 4:46pm
  
  Re: It all comes down to intent
  So we should shut down all the search engines, too?
  [ link to this | view in chronology ]
- eleete, 24 Feb 2009 @ 6:15am
  
  Re: It all comes down to intent
  "If you know something is stolen, and you help the person who stole it to resell it, then you broke the law."
  
  What was stolen ? Is the original author missing something ? Then they better call the police. Infringement is NOT theft. Try reading up on Thomas Jefferson.
  [ link to this | view in chronology ]
Michael Long, 23 Feb 2009 @ 3:34pm

Intent
I agree with Weird Harold. Linking to some site or web page is one thing. Linking directly to the full download of the-dark-knight.mp4 is quite another, and is--and should be--a contributory offense.
[ link to this | view in chronology ]
- Mike (profile), 23 Feb 2009 @ 4:25pm
  
  Re: Intent
  I agree with Weird Harold. Linking to some site or web page is one thing. Linking directly to the full download of the-dark-knight.mp4 is quite another, and is--and should be--a contributory offense.
  
  Can you point to where in the law it says that?
  [ link to this | view in chronology ]
  - Weird Harold, 24 Feb 2009 @ 4:10am
    
    Re: Re: Intent
    conspiracy laws have been on the books for a long, long time. Example that you don't have to be the one to pull the trigger to be found guilty of conspiracy to murder. Direct linking to material that is obviously used without permission would be conspiracy to distribute stolen material. Value of each download is maybe $15 (for a movie), do that 1000 times and you have a major enough crime to merit action.
    
    Just because you are on the internet doesn't mean that the law of the land you live in doesn't apply.
    [ link to this | view in chronology ]
    - eleete, 24 Feb 2009 @ 6:13am
      
      Re: Re: Re: Intent
      "Direct linking to material that is obviously used without permission would be conspiracy to distribute stolen material."
      
      What makes it so 'obvious' ? Perhaps some people like their 'material' distributed to the widest possible audience.
      
      Also, Please stop with the Stolen crap, No one has had their works stolen unless they no longer have it. FFS
      [ link to this | view in chronology ]
      - Weird Harold, 24 Feb 2009 @ 8:23pm
        
        Re: Re: Re: Re: Intent
        Like it or not, if someone has a copy of something they didn't rightfully gain, they have stolen it. a digital copy isn't any different from shoplifting, just neater and with less chance of being caught on camera. So please stop with the "it's not stolen" crap, because stolen just means "obtained without permission".
        
        Obvious? Let's see: unreleased record albums. Videos of movies not yet released. Movies shot in theatres with a camcorder. "hacked" software (like adobe stuff with keygens). I could go on and on. All of that is pretty darn obvious.
        
        Remember too: Ignorance of the law or circumstances isn't a defence, it's an admission of guilt.
        [ link to this | view in chronology ]
        
        DanC, 24 Feb 2009 @ 8:50pm
        
        Re: Re: Re: Re: Re: Intent
        Remember too: Ignorance of the law or circumstances isn't a defence, it's an admission of guilt.
        
        Sorry, but that's not even remotely close to being true.
        
        Like it or not, if someone has a copy of something they didn't rightfully gain, they have stolen it. a digital copy isn't any different from shoplifting
        
        Like it or not, it is different. One is a physical item, one is not. That you don't recognize a difference simply means you refuse to acknowledge reality.
        [ link to this | view in chronology ]
Sgt Schultz, 23 Feb 2009 @ 5:37pm

I see nothing
There is some law about aiding and abetting, if you know about an unlawful act but say nothing you are an accomplice.

But at the same time if you point at the unlawful act, you are guilty of copyright infringement ...
[ link to this | view in chronology ]
Anonymous Coward, 24 Feb 2009 @ 12:00am

I should link my foot to their ass!

Fawk all the RIAA(s) in the world.
[ link to this | view in chronology ]