November 8, 2017
Don’t hyperlink me, bro!
by Alex Primiani
According to Krista L. Cox, a blogger for Above The Law, sharing hyperlinks of copyright materials might soon become grounds for a lawsuit.
This past year, Justin Goldman, a photographer at Getty Images, sued several news outlets for infringing on his copyright to a photo he took of New England Patriots quarterback Tom Brady. Among those media outlets were the Boston Herald and Yahoo Sports, who shared Goldman’s photo via embedded tweets from others who had, without permission, reposted it (those images have since been removed).
Writing on the lawsuit, Cox asks what the limitations could be if a court deemed the links to these materials—regardless of who shared them where—to be protected by copyright:
While Goldman certainly has a right to request takedown of online material if it is found to infringe his copyright, the fact that news outlets who embed tweets (never mind the fact that the tweets themselves may be a fair use of the photo) might be liable for huge penalties including statutory damages under copyright law poses serious risks to social media, journalism, and freedom of expression in the digital age.
Up until now, courts have focused their energies on users who upload copyrighted materials to the Internet, leaving those who share or receive the information pretty much out of it.
But according to Cox, courts in the US and across the world are debating whether others involved in the proliferation of copyrighted material online should be held accountable. Last year, the Court of Justice of the European Union ruled that anyone posting links to copyrighted material in for-profit scenarios might be infringing on copyright. That is, regardless of your knowledge of the copyright status of whatever material you might share, you might be fked. Cox continues:
The court goes on to clarify that “when hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published… the act of posting a clickable link to a work illegally published on the internet” results in liability.
Much as happened with the crackdown on music file-sharing in the early 2000s—which arguably led to the current music scene of across-the-board collaborations and sampling—if hyperlinking becomes restricted on the basis of ownership, consumers might see a dramatic and limiting change in how they can use the Internet.
Alex Primiani is senior publicist at Melville House.