User Liability for Posting Links to Third-Party Infringing Sites
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The DMCA’s safe harbor provision is a shield for service providers, intended to enable Internet businesses to operate without excessive exposure to copyright liability. It does not protect the users of online services who infringe copyrights in their individual capacity (by, say, personally uploading a copyrighted video without authorization). Though copyright holders often disfavor proceeding against individual infringers,<ref>“Chasing individual consumers is time consuming and is a teaspoon solution to an ocean problem.” Randal C. Picker, ‘Copyright as Entry Policy: The Case of Digital Distribution,’ 47 ''Antitrust Bull.'' 423, 442 (2002).</ref> such lawsuits are brought and can be financially ruinous for defendants. In this regard, it is critical for anyone posting content on the Internet to keep apprised of which practices are tolerated in their jurisdiction, and which have been deemed actionable.
The DMCA’s safe harbor provision is a shield for service providers, intended to enable Internet businesses to operate without excessive exposure to copyright liability. It does not protect the users of online services who infringe copyrights in their individual capacity (by, say, personally uploading a copyrighted video without authorization). Though copyright holders often disfavor proceeding against individual infringers,<ref>“Chasing individual consumers is time consuming and is a teaspoon solution to an ocean problem.” Randal C. Picker, ‘Copyright as Entry Policy: The Case of Digital Distribution,’ 47 ''Antitrust Bull.'' 423, 442 (2002).</ref> such lawsuits are brought and can be financially ruinous for defendants. In this regard, it is critical for anyone posting content on the Internet to keep apprised of which practices are tolerated in their jurisdiction, and which have been deemed actionable.
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==User Liability for Posting Links to Third-Party Infringing Sites==
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==User Liability in the U.S. for Posting Links to Third-Party Infringing Sites==
While there are some acts that clearly constitute copyright infringement (such as the unauthorized copying and sale of copyrighted works), there is some ambiguity over whether certain activities amount to infringement, namely the posting of links to sites that host infringing content and the “embedding” of infringing content.
While there are some acts that clearly constitute copyright infringement (such as the unauthorized copying and sale of copyrighted works), there is some ambiguity over whether certain activities amount to infringement, namely the posting of links to sites that host infringing content and the “embedding” of infringing content.
This section will address the issue of user liability for posting links to copyrighted content. It will consider the exemptions that may apply in cases of innocent infringement, and survey domestic and international case law addressing the civil and criminal liability of individual infringers.
This section will address the issue of user liability for posting links to copyrighted content. It will consider the exemptions that may apply in cases of innocent infringement, and survey domestic and international case law addressing the civil and criminal liability of individual infringers.
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===Innocent Infringement in the United States===
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===Innocent Infringement===
The [[Wikipedia:Copyright law of the United States|United States federal copyright statute]] accords copyright holders exclusive rights to reproduce, distribute, perform, display, and make derivatives of their works. <ref>{{USC|17|106}}.</ref> As the statute is written, performance of any of these actions by an unauthorized third party amounts to infringement (unless covered by an exception to infringement), [[Wikipedia:Strict liability|regardless of whether the act was done knowingly or performed intentionally]]. However, it is important to read the copyright statute in the context of the time when it was written (its last major revision was in 1976), when it would have been virtually inconceivable to infringe another’s copyrights unintentionally.<ref>Not unintentionally in the sense of a lack of desire to violate another’s rights, but unintentionally in the sense of unwittingly copying another’s work. For more information on intentionality and copyright liability, see R. Anthony Reese, Innocent Infringement in U.S. Copyright Law: A History, available at: http://www.law.uci.edu/faculty/full-time/reese/reese_innocent_infringement.pdf.</ref>
The [[Wikipedia:Copyright law of the United States|United States federal copyright statute]] accords copyright holders exclusive rights to reproduce, distribute, perform, display, and make derivatives of their works. <ref>{{USC|17|106}}.</ref> As the statute is written, performance of any of these actions by an unauthorized third party amounts to infringement (unless covered by an exception to infringement), [[Wikipedia:Strict liability|regardless of whether the act was done knowingly or performed intentionally]]. However, it is important to read the copyright statute in the context of the time when it was written (its last major revision was in 1976), when it would have been virtually inconceivable to infringe another’s copyrights unintentionally.<ref>Not unintentionally in the sense of a lack of desire to violate another’s rights, but unintentionally in the sense of unwittingly copying another’s work. For more information on intentionality and copyright liability, see R. Anthony Reese, Innocent Infringement in U.S. Copyright Law: A History, available at: http://www.law.uci.edu/faculty/full-time/reese/reese_innocent_infringement.pdf.</ref>
Modern technology has required courts to take a more critical approach when determining the actionability of an involuntary act of copyright infringement. For instance, whenever you visit a web page that features copyrighted content, your computer automatically copies the content into your computer’s [[Wikipedia:RAM|random-access memory]] (RAM). Under a straightforward application of the 1976 Copyright Act, this alone is sufficient to constitute copyright infringement.<ref>Indeed, when the issue of RAM capture was first addressed by the courts, it was found to amount to infringement. See [[Wikipedia:MAI Systems Corp. v. Peak Computer, Inc.|''MAI Sys. Corp. v. Peak Computer, Inc.'']], 991 F.2d 511, 518 (9th Cir. 1993), available at http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm (“’copying’ for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM”). This analysis was then refined in the case of [[Wikipedia:Cartoon Network, LP v. CSC Holdings, Inc.|''Cartoon Network LP, LLLP v. CSC Holdings, Inc.'']], 536 F.3d 121, 130 (2d Cir. 2008), available at http://cyber.law.harvard.edu/people/tfisher/IP/2008%20Cartoon%20Abridged.pdf (“Given that the data reside in no buffer for more than 1.2 seconds before being automatically overwritten, and in the absence of compelling arguments to the contrary, we believe that the copyrighted works here are not “embodied” in the buffers for a period of more than transitory duration, and are therefore not “fixed” in the buffers. Accordingly, the acts of buffering in the operation of the RS–DVR do not create copies, as the Copyright Act defines that term.”).</ref> Today, it is understood that some “copying” is incidental to the use of modern technology, and should not be considered to amount to a [[Wikipedia:tort| tort]] absent some element of volition.<ref>See [[Wikipedia:Religious Technology Center v. Netcom|''Relig. Tech. Ctr. v. Netcom On-Line Commun. Services, Inc.'']], 907 F. Supp. 1361, 1370 (N.D. Cal. 1995), available at http://www.law.cornell.edu/copyright/cases/907_FSupp_1361.htm (declining to impose direct liability on an online service provider with respect to content that was posted on its service by one of its customers on the basis that “although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party.”). It is important to note that this case was decided before the DMCA was enacted, hence there was no safe harbor that the online service provider could have relied upon to shield itself from liability for the acts of its users.</ref>
Modern technology has required courts to take a more critical approach when determining the actionability of an involuntary act of copyright infringement. For instance, whenever you visit a web page that features copyrighted content, your computer automatically copies the content into your computer’s [[Wikipedia:RAM|random-access memory]] (RAM). Under a straightforward application of the 1976 Copyright Act, this alone is sufficient to constitute copyright infringement.<ref>Indeed, when the issue of RAM capture was first addressed by the courts, it was found to amount to infringement. See [[Wikipedia:MAI Systems Corp. v. Peak Computer, Inc.|''MAI Sys. Corp. v. Peak Computer, Inc.'']], 991 F.2d 511, 518 (9th Cir. 1993), available at http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm (“’copying’ for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM”). This analysis was then refined in the case of [[Wikipedia:Cartoon Network, LP v. CSC Holdings, Inc.|''Cartoon Network LP, LLLP v. CSC Holdings, Inc.'']], 536 F.3d 121, 130 (2d Cir. 2008), available at http://cyber.law.harvard.edu/people/tfisher/IP/2008%20Cartoon%20Abridged.pdf (“Given that the data reside in no buffer for more than 1.2 seconds before being automatically overwritten, and in the absence of compelling arguments to the contrary, we believe that the copyrighted works here are not “embodied” in the buffers for a period of more than transitory duration, and are therefore not “fixed” in the buffers. Accordingly, the acts of buffering in the operation of the RS–DVR do not create copies, as the Copyright Act defines that term.”).</ref> Today, it is understood that some “copying” is incidental to the use of modern technology, and should not be considered to amount to a [[Wikipedia:tort| tort]] absent some element of volition.<ref>See [[Wikipedia:Religious Technology Center v. Netcom|''Relig. Tech. Ctr. v. Netcom On-Line Commun. Services, Inc.'']], 907 F. Supp. 1361, 1370 (N.D. Cal. 1995), available at http://www.law.cornell.edu/copyright/cases/907_FSupp_1361.htm (declining to impose direct liability on an online service provider with respect to content that was posted on its service by one of its customers on the basis that “although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party.”). It is important to note that this case was decided before the DMCA was enacted, hence there was no safe harbor that the online service provider could have relied upon to shield itself from liability for the acts of its users.</ref>
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===Civil Liability for Linking to Infringing Content===
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===Civil Liability===
Cases in which users have been found liable for the unauthorized copying or distribution of copyrighted works are abounding.<ref>See, e.g., [[Wikipedia:Capitol Records, Inc. v. Thomas-Rasset|''Capitol Records, Inc. v. Thomas-Rasset'']], 692 F.3d 899 (8th Cir. 2012) ''cert. denied'', 133 S. Ct. 1584 (U.S. 2013), available at https://www.eff.org/document/thomas-rasset-8th-circuit-opinion (ultimately holding a Kazaa user liable for $222,000 in damages for making 24 sound recordings available for download); see also [[Wikipedia:Sony BMG Music Entertainment v. Tenenbaum|''Sony BMG Music Entm't. v. Tenenbaum'']], 719 F.3d 67 (1st Cir. 2013), available at http://media.ca1.uscourts.gov/pdf.opinions/12-2146P-01A.pdf (Defendant was found liable for distributing 30 of plaintiff’s sound recordings over a person-to-person network. The District Court reduced the jury’s award of $22,500 for each work infringed to $2,250 for each work infringed on due process grounds. On appeal, the First Circuit reinstated the jury award.).</ref> However, we have not found any United States cases wherein a user has been found personally liable for posting links to an infringing site. But it is worth noting that a user who posts a link with the intent and purpose of directing others to engage in infringement does risk liability for contributory infringement. For example, a site that provides URLs to other sites that host infringing material could be liable for contributory infringement if the site also encourages users to access the copyrighted material and posts additional information on how to obtain it.<ref>[[Wikipedia:Intellectual Reserve v. Utah Lighthouse Ministry|''Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.'']], 75 F. Supp. 2d 1290, 1294 (D. Utah 1999), available at http://cyber.law.harvard.edu/property00/metatags/ULM.html (citing ''MAI Systems'' for the proposition that merely creating a copy of text in a computer’s RAM – which occurs when one causes text from a website to appear in their web browser by visiting the site – amounts to copyright infringement).</ref><ref>As noted above, the Second Circuit, in [[Wikipedia:Cartoon Network, LP v. CSC Holdings, Inc.|''Cartoon Network'']], interpreted [[Wikipedia:MAI Systems Corp. v. Peak Computer, Inc.|''MAI Systems'']] as holding that copying information into a computer’s RAM ''can'' result in copying, but only if the copy persists for longer than a “transitory duration.” 536 F.3d 121, 128 (2d Cir. 2008) available at http://cyber.law.harvard.edu/people/tfisher/IP/2008%20Cartoon%20Abridged.pdf. However, RAM copying arguably remains infringement in the Ninth Circuit for the reason that [[Wikipedia:MAI Systems Corp. v. Peak Computer, Inc.|''MAI Systems'']] has not been officially overruled.</ref><ref>Similarly, in ''Arista Records, Inc. v. Mp3Board, Inc.'' the U.S. District Court for the Southern District of New York held that a site that provides links to copyrighted works could potentially be liable for contributory infringement.'' 2002 Copr. L. Dec. P 28483, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002). As with [[Wikipedia:Intellectual Reserve v. Utah Lighthouse Ministry|''Intellectual Reserve'']], the court did not solely rely on links as the basis for imposing liability. The court pointed to encouragements the site owners had made to users, as well as assistance the site owners gave to users looking for particular songs. Id. at *3. Although these cases do not provide any clear-cut rules, they, along with other cases on secondary liability, indicate that the actions and intent behind linking to infringing material may well matter. See [[Wikipedia:MGM v. Grokster|''Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.'']], 545 U.S. 913, 930 (2005) (hereinafter, “''MGM''”), available at http://www.law.cornell.edu/supct/html/04-480.ZS.html (“One infringes contributorily by intentionally inducing or encouraging direct infringement.” [emphasis added]).</ref> If a website merely announces that groups are releasing infringing material, and the site does not itself contain any links to infringing material or exhortations to piracy, the danger of incurring secondary liability merely for linking to that website is arguably lower, but that risk is not eliminated.<ref>''See'' Benjamin H. Glatstein, ''Tertiary Copyright Liability'', 71 U. Chi. L. Rev. 1605 (2004) (arguing for liability for those that assist contributory infringers, even if they have no contact with the direct infringement).</ref>
Cases in which users have been found liable for the unauthorized copying or distribution of copyrighted works are abounding.<ref>See, e.g., [[Wikipedia:Capitol Records, Inc. v. Thomas-Rasset|''Capitol Records, Inc. v. Thomas-Rasset'']], 692 F.3d 899 (8th Cir. 2012) ''cert. denied'', 133 S. Ct. 1584 (U.S. 2013), available at https://www.eff.org/document/thomas-rasset-8th-circuit-opinion (ultimately holding a Kazaa user liable for $222,000 in damages for making 24 sound recordings available for download); see also [[Wikipedia:Sony BMG Music Entertainment v. Tenenbaum|''Sony BMG Music Entm't. v. Tenenbaum'']], 719 F.3d 67 (1st Cir. 2013), available at http://media.ca1.uscourts.gov/pdf.opinions/12-2146P-01A.pdf (Defendant was found liable for distributing 30 of plaintiff’s sound recordings over a person-to-person network. The District Court reduced the jury’s award of $22,500 for each work infringed to $2,250 for each work infringed on due process grounds. On appeal, the First Circuit reinstated the jury award.).</ref> However, we have not found any United States cases wherein a user has been found personally liable for posting links to an infringing site. But it is worth noting that a user who posts a link with the intent and purpose of directing others to engage in infringement does risk liability for contributory infringement. For example, a site that provides URLs to other sites that host infringing material could be liable for contributory infringement if the site also encourages users to access the copyrighted material and posts additional information on how to obtain it.<ref>[[Wikipedia:Intellectual Reserve v. Utah Lighthouse Ministry|''Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.'']], 75 F. Supp. 2d 1290, 1294 (D. Utah 1999), available at http://cyber.law.harvard.edu/property00/metatags/ULM.html (citing ''MAI Systems'' for the proposition that merely creating a copy of text in a computer’s RAM – which occurs when one causes text from a website to appear in their web browser by visiting the site – amounts to copyright infringement).</ref><ref>As noted above, the Second Circuit, in [[Wikipedia:Cartoon Network, LP v. CSC Holdings, Inc.|''Cartoon Network'']], interpreted [[Wikipedia:MAI Systems Corp. v. Peak Computer, Inc.|''MAI Systems'']] as holding that copying information into a computer’s RAM ''can'' result in copying, but only if the copy persists for longer than a “transitory duration.” 536 F.3d 121, 128 (2d Cir. 2008) available at http://cyber.law.harvard.edu/people/tfisher/IP/2008%20Cartoon%20Abridged.pdf. However, RAM copying arguably remains infringement in the Ninth Circuit for the reason that [[Wikipedia:MAI Systems Corp. v. Peak Computer, Inc.|''MAI Systems'']] has not been officially overruled.</ref><ref>Similarly, in ''Arista Records, Inc. v. Mp3Board, Inc.'' the U.S. District Court for the Southern District of New York held that a site that provides links to copyrighted works could potentially be liable for contributory infringement.'' 2002 Copr. L. Dec. P 28483, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002). As with [[Wikipedia:Intellectual Reserve v. Utah Lighthouse Ministry|''Intellectual Reserve'']], the court did not solely rely on links as the basis for imposing liability. The court pointed to encouragements the site owners had made to users, as well as assistance the site owners gave to users looking for particular songs. Id. at *3. Although these cases do not provide any clear-cut rules, they, along with other cases on secondary liability, indicate that the actions and intent behind linking to infringing material may well matter. See [[Wikipedia:MGM v. Grokster|''Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.'']], 545 U.S. 913, 930 (2005) (hereinafter, “''MGM''”), available at http://www.law.cornell.edu/supct/html/04-480.ZS.html (“One infringes contributorily by intentionally inducing or encouraging direct infringement.” [emphasis added]).</ref> If a website merely announces that groups are releasing infringing material, and the site does not itself contain any links to infringing material or exhortations to piracy, the danger of incurring secondary liability merely for linking to that website is arguably lower, but that risk is not eliminated.<ref>''See'' Benjamin H. Glatstein, ''Tertiary Copyright Liability'', 71 U. Chi. L. Rev. 1605 (2004) (arguing for liability for those that assist contributory infringers, even if they have no contact with the direct infringement).</ref>
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Even though the defendant in [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works'']] was a service provider, and not an end-user, the court’s ruling turned upon the determination that the end-users’ acts of embedding videos (a form of hyperlinking) did not constitute an act of copyright infringement ''per se''. <ref>It is important to note the procedural posture of the [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works'']] case. The court in [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works'']] was only ruling on the challenge to the issuance of a preliminary injunction. The case should not be taken to stand for the proposition that an online service provider, or user, will never be held liable for linking to or embedding third-party bootleg content. Indeed, the court notes that, if myVidster had encouraged embedding bootleg videos, this would have been enough for a finding of liability to issue. [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works, Inc. v. Gunter'']], 689 F.3d 754, 758 (7th Cir. 2012)</ref>
Even though the defendant in [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works'']] was a service provider, and not an end-user, the court’s ruling turned upon the determination that the end-users’ acts of embedding videos (a form of hyperlinking) did not constitute an act of copyright infringement ''per se''. <ref>It is important to note the procedural posture of the [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works'']] case. The court in [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works'']] was only ruling on the challenge to the issuance of a preliminary injunction. The case should not be taken to stand for the proposition that an online service provider, or user, will never be held liable for linking to or embedding third-party bootleg content. Indeed, the court notes that, if myVidster had encouraged embedding bootleg videos, this would have been enough for a finding of liability to issue. [[Wikipedia:Flava Works Inc. v. Gunter|''Flava Works, Inc. v. Gunter'']], 689 F.3d 754, 758 (7th Cir. 2012)</ref>
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=== Criminal Liability ===
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===Criminal Liability===
U.S. copyright law provides for [[Wikipedia:Criminal law|criminal]] penalties for copyright infringement in limited circumstances.<ref>{{USC|17|506}}</ref> We could not find any case law directly addressing the issue of criminal liability being imposed in the U.S. for user-posted links to sites containing infringing works, but the general requirements for criminal liability do provide some guidance.
U.S. copyright law provides for [[Wikipedia:Criminal law|criminal]] penalties for copyright infringement in limited circumstances.<ref>{{USC|17|506}}</ref> We could not find any case law directly addressing the issue of criminal liability being imposed in the U.S. for user-posted links to sites containing infringing works, but the general requirements for criminal liability do provide some guidance.