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Saturday, January 13, 2007

Linking to copyrighted material unlawful

Recently someone on Digitalpoint asked whether it would be illegal to start a site that linked to ripped MP3’s, movies and TV shows hosted on third-party file hosting sites. This comes hot on the heels of another member asking whether it would be illegal to imbed YouTube videos containing full-length TV episodes on their site.

From an ethical and common sense standpoint there was no question in my mind – of course it would be illegal (or if it wasn’t then it should be). However, personal opinion doesn’t mean much, so having a bit of free time I decided to investigate the issue.

Now, if memory serves the whole Napster and Grokster court cases revolved around facilitating the sharing of copyrighted material even though these services did not host any of the files. They were still forced to shut down, pay damages or change their system so it prevented sharing of copyrighted material. From that it could be surmised that even though you aren’t hosting any files yourself, if you make it possible for other people to track down these files, you are facilitating infringement. Both of those cases involved some kind of software, so would the same apply to websites?

A Google search on the subject provided quite a few interesting links. In the US there are a number of cases where the court ruled that linking to copyrighted material is illegal. This is classified as “contributory infringement” where the site linking to the material is considered as facilitating the infringement of copyright material hosted on another site.

Sites linking to copyrighted material can be held liable for damages and sued by the copyright holder. In most cases according to the DMCA, if a site receives a takedown request and if they comply chances are that they will not be held liable for damages. This is only valid if the site acted in good faith and wasn’t aware that the material was copyrighted.

However a site that exists solely for the purpose of linking to copyrighted material (such as TV shows, Movies and MP3s) could be held liable regardless, even if they comply with the takedown notices. Sites like these most likely will not qualify for “safe harbor” under the DMCA since they are fully aware that they are linking to copyrighted material. Add any form of advertising (Adsense, banner ads etc.) visible on the site into the mix and things could get even worse since they will be viewed as profiting from the copyrighted materials.

Even though this still seems to be a rather grey area and it is currently unclear were exactly to draw the line – the fact remains that, according to US law precedents, linking to copyrighted material could indeed be illegal regardless if you are hosting the files or not. This would also include embedding videos containing copyrighted material (especially TV shows and movies) from YouTube and other similar services into your sites. Just because YouTube offers you an easy way to embed these files doesn’t mean that you should or that it is even legal.

Keep in mind that YouTube and other similar services most likely have a dedicated team of lawyers that help them with copyright issues. They also have protection under the “safe harbor” clause of the DMCA since they except files from members in ‘good faith’. Once copyright infringement is brought under their attention those files are normally also quickly removed. However if you link/embed a video containing the copyrighted content (movies, TV shows etc.) into your site you could be seen as wilfully distributing the copyrighted content and could be held liable for that infringement. It is common knowledge that TV shows and movies are copyrighted material so you won’t be able to claim ignorance in the matter.

My advice would be to use common sense. If you are linking to something in order to allow other people to download/view/obtain something they would have had to normally pay for, then you are doing something illegal and could be held liable for damages. So unless you have thousands of dollars to spend on legal fees, a cadre of lawyers on retainer and the will to fight court cases, then you should definitely not link to copyrighted material being distributed illegally. Hiding behind the excuse that no files are being hosted on your site, won’t be any defence at all.

It is best to err on the side of caution. If you are in doubt regarding the legality of incorporating something into your site, seek legal advice from a lawyer. Otherwise refrain from using something that could give rise to legal issues.

Killing the Internet?

There has been a huge outcry amongst the online community that the law/verdicts making it illegal to link to copyrighted material is an attempt to kill the nature of the Web and restrict freedom of speech. They argue that it’s a blatant attempt from ‘huge corporations’ to profit from the ‘little guys’. They are quick to point out that this would make linking to any site illegal, since content on websites are also copyrighted material.

However I think they’ve missed the point completely. This law is only there to prevent the illegal distribution of copyrighted material. It does not apply to normal everyday linking, and I doubt that it ever will. It’s an attempt at stopping someone from willingly distributing/facilitating the distribution of copyrighted material online.

This is definitely not a bad thing like they are making it out to be. Together with the ‘huge corporations’, it also protects the little guys – the fledgling digital artists trying to sell their music, software, artworks and books. The big corporations might survive their copyrighted works being pirated, but the little guys most likely won’t.

Copyright is there for a reason – to allow the creator of the work to control how that work is used and to offer them a way to generate income from their efforts. The sooner people learn to respect copyright the better. Who knows, you might even find yourself in a situation where your copyrighted work is being pirated and shared illegally. What would your views be then?

Disclaimer: I am not a lawyer. The above information is solely my view and interpretation on the subject and should not be viewed as legal advice. Please consult an intellectual property lawyer with regard to copyright and intellectual property issues.

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