Copyright Law and Hyperlinking – Think Again

Copyright, perhaps more so than any other area of law, is a
ripe domain for the education of business persons.  Especially in the “Internet Age” when there
is a certain ease of accidental infringement possible.  In the non-computer world it is difficult to
accidentally infringe the copyrighted work of another, though anything is
possible.  In today’s world copyright
infringement is prolific.  We read about
it in the news, and see it during movie previews (MPAA’s “You Wouldn’t Steal
a Car
”).  The root of this problem is
the ease with which information can be copied and proliferated by the most
often used tool in the office, the computer. 
However, there are more subtle ways to run afoul of another business’s
copyrights.  It is possible that the
simple act of hyperlinking could be copyright infringement. 
While no case in the Fifth Circuit has
yet to address the issue (other circuits have e.g. Ticketmaster Corp. v.
Tickets.com, Inc.
, 2000 U.S. Dist. LEXIS 4552 (C.D. Cal. 2000)) an
application of the “fair use” factors is still useful.  Those factors include:
1.      
The purpose and character of the use;
2.      
The nature of the copyrighted work;
3.      
The amount and substantiality of the portion
used; and
4.      
The effect of the use upon the potential market
for or value of the copyrighted work.
Assuming you are a business person with a question regarding
whether or not your use of material is “fair use” under copyright, it is also
safe to assume that the first factor will weigh against you as you are most
likely using it in a business context. 
The second factor goes towards the informative versus functional nature
of the copyrighted material; the reproduction of informational work is more
likely to be “fair use.”  The third
factor is the sticking point.  Does a
hyperlink use any portion of the material? 
On one hand it seems to be outside of any normal understanding of “use,”
but on the other in a sense the hyperlink contains the entire work and
reproduces it for “infringer’s” audience. 
The last factor is fact specific depending on industry, but in an
internet context it is unlikely that the potential value of a copyright would
be damaged by a hyperlink since the content is already on the internet.
I have discussed hyperlinking as the lowest common
denominator of potential copyright infringement for two reasons: first, it is
ubiquitous; and second, any higher use of content begins to trigger definite
warning signals in the head of a copyright lawyer.  For example, what if you had a hyperlink that
also displayed an image of the website you are linking to?  Or what if the hyperlink uses the actual text
of the title as the lettering of the hyperlink? 
The real issue at play here is not really avoiding a successful
copyright suit; it is avoiding a copyright suit at all.

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