Linking to Copyright Materials Now Illegal?

[Jason Dunn]

<div class='os_post_top_link'><a href='http://www.webtvwire.com/tv-show-directory-quicksilverscreencom-threatened-by-fox/' target='_blank'>http://www.webtvwire.com/tv-show-directory-quicksilverscreencom-threatened-by-fox/</a><br /><br /></div><i>"QuickSilverScreen is a US based website that is being forced to shut down or be given away for free after Fox claimed that LINKING to TV Shows on video sharing sites like YouTube and DailyMotion is illegal. Fox also alledgedly claims the site cannot be sold by the owner so therefore it must be given away for free."</i><br /><br /><img src="http://www.digitalmediathoughts.com/images/quicksilverscreen.png" /><br /><br />As someone who earns a living running Web sites that largely link to other sites and pieces of content, this is a very scary thing. I can't imagine it would hold up in court, because I know linking has been challenged before. I did a bit of research, and this situation is a little bizarre: QuickSilverScreen is a text directory listing of all the TV shows at a site called <a href="http://www.dailymotion.com/">Dailymotion</a>. The Dailymotion people are the ones that Fox should be going after, since they host the actual content, but I suspect Dailymotion is based in a country where Fox has no ability to launch a lawsuit. All in all, this is ugly and I'm very surprised that the EFF didn't step up and take this case - because if plain old hyperlinks become a problem, things are going to get ugly in the blog world of linking....

[Vincent Ferrari]

I'm pretty sure the EFF, like the ACLU, has to be asked to join in on a case...

This really is sad, and I am tired of corporations bullying little guys. This is why fair use needs to be clearly defined by the government so that scumbags can't encroach on the rights of the little guy.

UGH.

Disgusting.

[Damion Chaplin]

UGH.

Disgusting.

My sentiments exactly. I'm kinda stunned really. :|

[cameron]

I'm pretty sure the EFF, like the ACLU, has to be asked to join in on a case...

This really is sad, and I am tired of corporations bullying little guys. This is why fair use needs to be clearly defined by the government so that scumbags can't encroach on the rights of the little guy.

UGH.

Disgusting.

I guess I have to be the voice of reason here. Unless I'm missing something, which is completely possible, Fox is completely within their rights here. What "rights" do the little guys have in this case? The sites being linked to are without a doubt directly in violation of Fox's copyright to this material. We can definitely discuss whether Fox is reasonable in going after someone who is linking to the material as opposed to actual site doing the hosting - but the fact that they are just telling the guy to shut it down vs. seeking actual damages appear to be reasonable.

This is absolutely not "fair use". How does linking to a site hosting content in violation of copyrights satisfy any of the four criteria for fair use?

The rights of the little guy? What about the rights of the copyright holder?

As someone who earns a living running Web sites that largely link to other sites and pieces of content, this is a very scary thing.

Jason - there is an extremely important difference here. You link to the site of the actual copyright holder. In reality you do the copyright holder a favor by encouraging visits to their site (which is the purpose of having a site, right?). You do not (or shouldn't be) linking to sites that are in violation of copyright laws.

I'll be the first to jump on the bandwagon when a company tries to enforce unreasonable restrictions on my rights when I have a legitimate right to the content - but this is not the case here (i.e. I've purchased the DVD, I should be able to watch the movie however I want). Bottom line - the fact that a copyright holder is legitimately attempting to enforce their rights its not "disgusting" - its good business sense.

All that being said - I believe that Fox is overstepping in saying that he can't sell the site. Fox has no ability to control what he does with a domain name that he legitimately owns (I don't believe). Fox only has the right to enforce their copyrights. If he removes the offending material - he can then do whatever he wants with the site and domain name. The kicker is that Fox could argue that he profited by providing the links to their copyrighted material, which could entitle them to damages. I think that would be tough to argue in court however.

Like I said - I could be missing something here - If I am, sorry about the tone of the post (I've been up since 2AM this morning and can't get to sleep again).

[Jason Dunn]

Jason - there is an extremely important difference here. You link to the site of the actual copyright holder. In reality you do the copyright holder a favor by encouraging visits to their site (which is the purpose of having a site, right?). You do not (or shouldn't be) linking to sites that are in violation of copyright laws.

Right, but what if I do it accidentally? What if I link to software that uses an image in the screenshot that's someone else's intellectual property? Forget me even using a screenshot of that software, just by LINKING to the software page that has the screenshot...I'd be linking to an IP violation, and could get sued to oblivion.

Sounds insane? Yes. But that's EXACTLY what a precedent like this would set. Intent isn't a factor in breaking the law AFAIK.

The Dailymotion site is the one that should get all the heat, not the guy linking to it.

[cameron]

Sounds insane? Yes. But that's EXACTLY what a precedent like this would set. Intent isn't a factor in breaking the law AFAIK.

I'll start this with my usual disclaimer that I am not a lawyer, just a lay person whose job requires that I be very conversant in the law and the area of government regulation.

Some thoughts. First - this isn't a "precedent". A precedent is an actual court decision that courts will subsequently use as a guide in determining procedure, outcome, etc. of subsequent court cases. If something isn't ruled on by a court - it's not a precedent. I know it's semantics, but semantics is very important when discussing aspects of the law.

Secondly - Companies have historically taken a very measured approach when dealing with copyright violation on the internet (notice I say that the approach is measured, not the basis for what they believe is a violation). Even in those cases where you and I would agree that there is no violation - the approach has generally been measured. That approach is for the copyright holder to notify the offender that they believe that their copyright is being violated, and giving the offender notice that the violation should cease or additional action will be taken.

Thirdly - Damages. I can sue you for actual damages (i.e. the direct profits you made from the use of my copyrighted works). It's up to me to prove damages. If I can demonstrate that you willfully violated my copyright (an area where intent does matter) - then I can sue you for more.

What does this mean for you as the owner of this site? It means that whenever you link to any content, you take a risk (although I believe that the risk is ridiculously small) that you can get sued for linking to copyrighted material. This is a risk that you take in doing business - and all business take risks (they just have to make sure that the potential implications of these risks are commensurate with the potential rewards of taking the risk). However, the chance that you, as a conscientious person who will remove links upon notification that they violate copyright, will ever get sued is very, very, very, very small. In doing some quick research, I haven't found any cases or settlements where someone who removed works after notification was responsible for damages. I'm not saying it will never happen, just that the likelihood of it occurring is negligible.

The Dailymotion site is the one that should get all the heat, not the guy linking to it.

I thought about this one a lot when I was making my post last night. Someone hosts something that is a willful violation of copyright laws. Ideally I'd go after that person, but what if I can't (different jurisdiction)? Someone then links to that information. Linking to the information is actually a violation of the DCMA. I should then go after that person - but again what if I can't? So then I find a person that I can go after who is linking to the linking? Why wouldn't I tell them to shut it down? How do I know that this third person, who I can go after, isn't related to one or both of the first two? Why wouldn't someone setup a chain of sites or companies that puts them farther down the line? This is in fact what happens in a large number of criminal enterprises (I'm not suggesting that what this guy is doing is "criminal" - just an example).

Another take - why do people use this guy's site? Why don't they use the daily motion site (I have no idea - I've never visited either)? If this guys site is popular then he's obviously providing something that dailymotion doesn't provide. Does what he provides make it easier for me to view the copyrighted work? More desirable? What is it? The fact that people use his site means that he is providing a degree of assistance (I can't think of the correct term) to the site hosting the material in their willful violation of copyrights. How is this not wrong??

Look - the general reaction on the internet is absolute horror whenever someone tries to enforce copyright. Look at the fuss we all (myself included) made when Microsoft wanted to shut down Kleinweder's smartphone homescreens (my smartphonethoughts user name is jctune). The end consensus was the their position was legitimate - again we might not have agreed with it - but it was legitimate. Every attempt to enforce copyright is not the egregious violation of rights (the ACLU - civil liberties for gods sake?! - do people even know what the purpose of these organizations are?) that the internet community believes they are. Fox has a legitimate right and as a public company an obligation to enforce their copyrights.

[Jason Dunn]

Secondly - Companies have historically taken a very measured approach when dealing with copyright violation on the internet (notice I say that the approach is measured, not the basis for what they believe is a violation).

Forcing someone to shut down their site because of hyperlinks is not "measured" to me. Sure, they could have actually sued him, but a site shutdown is still a thug tactic to me.

[cameron]

I guess we're just going to have a normal message board difference of opinion.

IMO - his site was actively engaged in helping people violate Fox's legitimate copyright. Fox has every right to shut him down.

We can of course argue about whether or not Fox should be doing this (just as we can argue about any other valid or invalid pursuit of copyright remedies) - but the fact that he didn't just get sued shows copyright holders are willing to give violators a chance to stop violating copyrights before taking further action.

The only part of Fox's action that I think isn't "measured" is the supposed prohibition on him selling the site.

[Jerry Raia]

Now this might be a dumb question. Why can't Google get sued if their search engine provides a similar link like the one we are discussing here?

[Jason Dunn]

Now this might be a dumb question. Why can't Google get sued if their search engine provides a similar link like the one we are discussing here?

Not a dumb question at all - Google could absolutely be sued for the same thing. And even if this isn't a legal precedent, Fox may go after other people and because the first guy gave in, others may as well...especially since the EFF didn't stand up for him.

[cameron]

Not a dumb question at all - Google could absolutely be sued for the same thing. And even if this isn't a legal precedent, Fox may go after other people and because the first guy gave in, others may as well...especially since the EFF didn't stand up for him.

There's a safe harbor provision under the DMCA for "service providers" of which I believe the search engines fall under this definition.