Does Linking to Content Infringe Copyright?

A recent federal court decision confirms that, without more, merely providing a link to copyrighted content is not direct infringement of the copyright in that content. Plaintiff sued defendants for copyright infringement based on defendants' alleged unauthorized sale of educational materials online. A paralegal in plaintiffs' law firm sought to buy some of the infringing materials, and one of the defendants sent her a link to material that had been uploaded to a file locker. Plaintiff moved for summary judgment, arguing in part that the link constituted infringement.

The court denied plaintiffs' summary judgment motion, but not because of the linking. It found that there was a triable fact as to whether defendant had uploaded the infringing content to the file locker. The court held that "as a matter of law, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement." It elaborated:

A hyperlink (or HTML instructions directing an internet user to a particular website) is the digital equivalent of giving the recipient driving directions to another website on the Internet. A hyperlink does not itself contain any substantive content; in that important sense, a hyperlink differs from a zip file. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner's five exclusive rights under [Section 106 of the Copyright Act].

But the decision shows where caution is in order -- the court noted that although linking to the content would not be direct infringement, uploading the content to the server to which the link pointed could be an infringement. And that linking could also constitute contributory infringement. Pearson Educ., Inc. v. Ishayev, 2013 WL 3948505 (S.D.N.Y. August 1, 2013)