Re: Copyright and hyperlinking case

On 6/12/97, Edward Barrow <edward[_at_]plato32.demon.co.uk> wrote:
>
> You may be interested in a new UK case on the question of copyright and
> hyperlinks. It differs from previous cases (TotalNews, Shetland Times)
> in that the links complained of are not to the plaintiff's website but
> to mirror sites outside the jurisdiction of the UK courts on which
> copies of an infringing document have been posted. An interlocutory
> injunction removing the hyperlinks has been granted ex parte by the
> High Court. A copy of the order can be seen at
>
> http://www.users.globalnet.co.uk/~dlheb/legal1.htm.
>

This is an interesting issue. I think it is much closer to copyright infringement than either the Shetland/Ticketmaster cases or the TotalNews case.

Assuming that a link is not a direct copyright infringement -- it does not itself in any way copy the plaintiff's expression -- it will be contributory infringement if it is a (1) knowing and (2) substantial participation in (3) someone else's act of direct infringement.

If we assume that the mirroring sites are infringing (ie. that whoever we decide is making the copy has no fair use defense, among other things), and that the person linking to them knows this, we are left with the question of whether a link to a known infringing site is "substantial participation" in the infringment. I can see this going either way.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

You can find a list of my articles and books, and information on how to obtain them, at http://www.law.utexas.edu/lemley/pubs.htm

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Mon Jun 16 1997 - 17:43:25 GMT