Online Service Provider Liability in the U.S. for User-Posted Links to Third-Party Infringing Sites
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===Civil Liability===
===Civil Liability===
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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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Cases in which users have been found liable for the unauthorized copying or distribution of copyrighted works (also known as "direct infringement") 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>
Of course, in order for a third-party intermediary to be held [[Wikipedia:Contributory liability|contributorily liable]], there must be a direct infringement.<ref>[[Wikipedia:MGM v. Grokster|''MGM'']] at 930. See also, [[Wikipedia:Gershwin Publishing Corp. v. Columbia Artists Management|''Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc.'']], 443 F.2d 1159, 1162 (2d Cir. 1971), available at http://law.justia.com/cases/federal/appellate-courts/F2/443/1159/246268/ (“[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”); ''UMG Recordings, Inc. v. Bertelsmann AG'', 222 F.R.D. 408, 411 (N.D. Cal. 2004) (“Liability under this theory requires substantial participation in a specific act of direct infringement.”).</ref> In other words, even if an intermediary encourages and offers to assist in unauthorized access to copyrighted works, if no one actually makes use of that assistance to perform an act of copyright infringement, no liability can issue.
Of course, in order for a third-party intermediary to be held [[Wikipedia:Contributory liability|contributorily liable]], there must be a direct infringement.<ref>[[Wikipedia:MGM v. Grokster|''MGM'']] at 930. See also, [[Wikipedia:Gershwin Publishing Corp. v. Columbia Artists Management|''Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc.'']], 443 F.2d 1159, 1162 (2d Cir. 1971), available at http://law.justia.com/cases/federal/appellate-courts/F2/443/1159/246268/ (“[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”); ''UMG Recordings, Inc. v. Bertelsmann AG'', 222 F.R.D. 408, 411 (N.D. Cal. 2004) (“Liability under this theory requires substantial participation in a specific act of direct infringement.”).</ref> In other words, even if an intermediary encourages and offers to assist in unauthorized access to copyrighted works, if no one actually makes use of that assistance to perform an act of copyright infringement, no liability can issue.
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==Online Service Provider Liability in the U.S. for User-Posted Links to Third-Party Infringing Sites==
==Online Service Provider Liability in the U.S. for User-Posted Links to Third-Party Infringing Sites==
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Cases like [[Wikipedia:Religious Technology Center v. Netcom|''Netcom'']] demonstrated the need for addressing the liability of companies that permit third parties to post and access infringing content on their servers.<ref>[[Wikipedia:Religious Technology Center v. Netcom|''Netcom'']] was the first case to impose a requirement of volition in order for a service provider to be held liable for an act of copyright infringement. 907 F. Supp. at 1370. </ref> The DMCA, discussed in the introduction, was introduced in 1998 to smooth the way for online service providers to operate without being exposed to excessive liability. The DMCA’s safe harbor provision shields online service providers from the liability incurred by users of their sites provided that certain criteria are abided, but it is not an absolute shield. Companies like Napster, Aimster, and Grokster have all been found liable for their role in encouraging and enabling copyright infringement on behalf of the services’ users.<ref>See [[Wikipedia:A%26M Records v. Napster, Inc.|''A&M Records, Inc. v. Napster, Inc.'']], 239 F.3d 1004 (9th Cir. 2001), available at http://www.law.cornell.edu/copyright/cases/239_F3d_1004.htm; [[Wikipedia:In re Aimster|''In re Aimster Copy. Litig.'']], 334 F.3d 643 (7th Cir. 2003), available at http://homepages.law.asu.edu/~dkarjala/cyberlaw/inreaimster(9c6-30-03).htm; [[Wikipedia:MGM v. Grokster|''Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.'']], 545 U.S. 913 (2005), available at http://www.law.cornell.edu/supct/html/04-480.ZS.html.</ref> This section will address the state of law regarding potential civil and criminal liability that online service providers may be subject to for permitting users to post links to sites hosting copyright-infringing content.
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Cases like [[Wikipedia:Religious Technology Center v. Netcom|''Netcom'']] demonstrated the need for addressing the liability of companies that permit third parties to post and access infringing content on their servers.<ref>[[Wikipedia:Religious Technology Center v. Netcom|''Netcom'']] was the first case to impose a requirement of volition in order for a service provider to be held liable for an act of copyright infringement. 907 F. Supp. at 1370. </ref> The DMCA, discussed in the introduction, was introduced in 1998 to smooth the way for online service providers to operate without being exposed to excessive liability. The DMCA’s safe harbor provision shields online service providers from the liability incurred by users of their sites provided that certain criteria are abided, but it is not an absolute shield. Companies like Napster, Aimster, and Grokster have all been found liable for their role in encouraging and enabling copyright infringement on behalf of the services’ users.<ref>See [[Wikipedia:A%26M Records v. Napster, Inc.|''A&M Records, Inc. v. Napster, Inc.'']], 239 F.3d 1004 (9th Cir. 2001), available at http://www.law.cornell.edu/copyright/cases/239_F3d_1004.htm; [[Wikipedia:In re Aimster|''In re Aimster Copy. Litig.'']], 334 F.3d 643 (7th Cir. 2003), available at http://homepages.law.asu.edu/~dkarjala/cyberlaw/inreaimster(9c6-30-03).htm; [[Wikipedia:MGM v. Grokster|''Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.'']], 545 U.S. 913 (2005), available at http://www.law.cornell.edu/supct/html/04-480.ZS.html.</ref> This section will address the state of law regarding potential secondary civil and criminal liability that online service providers may be subject to for permitting users to post links to sites hosting copyright-infringing content.
===Civil Liability===
===Civil Liability===