Not a problem, unless…
The Legal Genealogist absolutely loves the fact that genealogists are really starting to think about copyright issues.
I get questions all the time here to the blog about one copyright issue or another, and it’s heartwarming in so many ways to see that people care enough to want to do things right.
But there’s one question I get too frequently that really ought not to be a question — and let’s see if we can’t put it to rest.
Here’s the way the question usually goes (paraphrased from an actual question that came in yesterday): “I found a great article online and posted a link to it in my feed on Facebook. Am now thinking this might be a violation of copyright even though it is on the web. I did not post the contents, just the link, but should I still take down the post anyway?”
Not to worry.
Really.
Posting a link to someone’s online really isn’t the same thing as copying and posting the content itself.
Let’s start with the fact that the web, and the code that runs the web, really is nothing more or less than a series of links: links to files, links to photographs and videos and audios, links from one website to another. If links themselves were an issue, the whole web system wouldn’t be possible.
As explained more precisely by the Digital Media Law Project of the Berkman Klein Center for Internet & Society at Harvard University:
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.1
So when I add a link in the text above to the Digital Media Law Project or one to the Berkman Klein Center for Internet & Society at Harvard University, I’m simply using a tool the web makes available to take you — the reader — from the reference on this website to the place where you can find the site I’m talking about. There’s no copyright concern in the slightest about simply giving you the citation to that source.
Moreover, when I add the link in the footnote to the specific material I quoted from “Linking to Copyrighted Materials” article, I have no concerns that I might be violating the copyright of the Digital Media Law Project either. The link by itself is not going to raise copyright concerns. And, I should add, I have no concerns about quoting the content either, but that’s because it’s being made available under Creative Commons license.2
Got that?
The link, as a link, isn’t a copyright problem: no court anywhere has ever held that linking to another website violates that other website’s copyright.
Now, of course, that doesn’t mean there isn’t any possible way a link might be a problem. Life is never quite that easy. There are problems that could exist:
• If you pull content onto your website from others’ websites using what’s called framing, the law isn’t at all clear on whether that might be regarded as copyright infringement.3
• If you pull content onto your website by calling up an image on your website that comes directly from another website through what’s called inlining, the courts aren’t clear on that either. One court said it potentially could be infringement, another said it might not be if the images were just thumbnails. But it’s murky.4
• If you provide a link on your website to material on another website that you know is infringing yet a third party’s copyright, that could get you into trouble. Some courts might figure you were really aiding and abetting the other website’s misconduct.5
• And there are some types of technology that are designed to circumvent all the legal protections technology develops for content producers, and a federal law that makes it illegal to link to sites that make that kind of circumvention technology available in violation of the law.6
But a simple straightforward link to legal material on the web?
Not a problem.
Go for it.
SOURCES
- “Linking to Copyrighted Materials,” CC BY-NC-SA 3.0, Digital Media Law Project, Berkman Klein Center for Internet & Society (http://www.dmlp.org/ : accessed 6 Oct 2017). ↩
- See generally Judy G. Russell, “Scoping the CC license,” The Legal Genealogist, posted 20 Nov 2015 (https://www.legalgenealogist.com/blog : accessed 6 Oct 2016). ↩
- See “Connecting to Other Websites,” Copyright & Fair Use, Stanford University Libraries (http://fairuse.stanford.edu/ : accessed 6 Oct 2016). ↩
- Ibid. ↩
- “Linking to Copyrighted Materials: Linking to Infringing Works,” CC BY-NC-SA 3.0, Digital Media Law Project, Berkman Klein Center for Internet & Society (http://www.dmlp.org/ : accessed 6 Oct 2017). ↩
- Ibid., “Linking to Copyrighted Materials: Linking to Circumvention Technology Proscribed by the DMCA.” ↩
One murky area is with photographs.
Instagram offers “share url of this image.” I share only the link to a Facebook page. On Facebook the images renders through but it is only through the link and not downloaded and then re-uploaded on my page. Since Facebook owns Instagram I’m thinking this is probably ok with their respective tos.
However, sometimes on Flickr I see photographers say “you may not link to this photo.” Flickr worries me, even when they don’t say that. Is it illegal to “link” to someone’s photo as they are requesting we don’t do? I know professional photographers are particularly sensitive about the copyright of their photos and I don’t want to go afoul of them.
Whenever a service offers a share-this button, that has to be considered as an offer of a license to re-use as much of the item as gets reposted when you use the share-this button. I can’t imagine a court ruling otherwise But when it comes to places like Flickr or other photo sites… I could be wrong but, speaking as a photographer, it seems to me it’s really only the inline linking that photographers object to. In other words, is someone seeing the image on your site? If so, then that could be considered framing or inlining and, in that case, it’s not just a link and courts might view it differently. Plus I’d never use an image if someone said “don’t use my image.”
This is an excellent lead-in to something I’ve been wondering about. I think I’m safe, but would be interested in your take.
I edit the newsletter for a non-genealogical organization, but this could affect all newsletter editors. The newsletter is completely electronic and consists primarily of links to online articles I think might interest my colleagues (the purpose, which is irrelevant to the question but might have some pertinence to the answer, is to keep us all informed on current events in our regulated industry). I repeat the article’s headline as my link, then the first paragraph — which normally is limited to two sentences — or a cobbling together of two, at most three sentences, from the first couple paragraphs to get just enough information to let my reader decide whether it’s something he or she wants to open. Since there can be two to three dozen of these in each issue, no one is going to be interested in every single link.
The question, then, is whether I’m exceeding the limits of “fair use.” I’m sure I’m pushing them, but what I include really does amount to only teaser material with no solid content. At most, it’s the statement of a single fact (or maybe two, for particularly complex subjects) with no supporting material.
You have to make your own decision as to whether you are using only just enough to really be a teaser that will entice people to go to the original and read it (and which then might be considered fair use) or whether you’re really giving away the store with what you quote. I can’t tell you how to make the fair use analysis, only that it’s something you need to do.
If only things were as simple in the EU. Earlier this month, the Court of Justice of the EU ruled that before a commercial site could link to content, it had to seek the permission of the copyright owner. See, for example, https://ipkitten.blogspot.it/2016/09/super-breaking-liberal-cjeu-says-that.html. What constitutes a commercial site is unclear. (If you have advertising on your site, are you commercial?)
We won’t even talk about when an American web site might be subject to EU liability…
With all due respect to the Court of Justice ( <-- that's lawyer-speak for "oh my gosh do I ever disagree with this"), the Court of Justice is full of it...