Jacob Rogers
The law related to hyperlinks is breaking.
Hyperlinks are a system for directing readers around the internet, but the
rules vary by the location of whoever makes the link. People use the links once
and move on, but the rules seem headed towards active link monitoring. The
internet treats hyperlinks as all of a kind, but courts are breaking them down
by type, content, and specialty.
In the metaphor of the internet as highway,
hyperlinks are the forks, side roads, and driveways into the unknown for the
online traveler. Sometimes they are neglected and become overgrown. Other times
they lead to a hidden gem. Yet other times still there’s a massive pothole the
second you turn the corner. Most often, hyperlinks provide valuable information
for the explorer, directing them to sources, background, context, or the
endless rabbit holes of exploring related topics. Anyone that has come up for
air after a few hours on a deep wiki-walk is familiar with this
use of hyperlinks and the way they can make it easy to traverse the internet. A
second type of hyperlink is
used for humor, surprising the reader with the result or the mouseover text
previewing where the link is going. Some hyperlinks can be embedded via various
technologies to appear on the page to show a preview of what is coming without
the need to leave the current URL, and at times the presence or absence of that
preview depends on the user’s settings (such as whether their browser allows a
website to load images). A small handful of hyperlinks are harmful as well,
tricking the reader into intentionally visiting a site with malware or spyware
that aims to steal information or wreck their computer.
The law, however, does not distinguish
effectively between the many ways hyperlinks are used online. Rather, the law
on hyperlinking has split by region in different ways. In the United States,
the law is currently in flux and has focused mostly around liability for
copyrights. Perfect 10 v. Amazon
established what’s known as the “server test.” In Perfect 10, Google thumbnail images that
acted as hyperlinks linking back to full size originals were found not to
infringe copyright law, in significant part because the full size images were
not on Google’s servers and therefore had not been copied. However, in a recent
case, Goldman v. Breitbart,
the court held that the fact that a picture of Tom Brady was visible on a
Breitbart web page to the reader was enough for copyright infringement. (The
link in this case was an “embedded” image, meaning that the reader would see
the image on Breitbart without Breitbart making a copy of it. Technologically,
that occurred by instructing the user’s browser to access it from Twitter
directly.) It’s
currently unclear where U.S. law is headed and what the legal basis might be
for linking to images.
In Europe, the law attempts to distinguish the
lawfulness of a hyperlink based on the knowledge of the person who created the
link, following the recent GS
Media case. However, GS Media overwhelms its knowledge standard with an additional rule
that website creators who attempt to make money must carry out an investigation
of what they link to and will be presumed to have knowledge of the content
behind a hyperlink. While this does not affect every site, such a large number
of sites either have minor advertising or encourage users to make some kind of
purchase that it impacts a tremendous part of the internet. Europe also has a
further complication for copyrighted works in which they consider whether and
where the work was already accessible online. If something was already freely
available and a link does not meaningfully change who can access it, it may not
violate copyright because there was not a publication to a “new
public.”
These various standards are problematic because
they change hyperlinks from something easy to use into something complicated.
While judicial attempts to force changes in behavior can sometimes be
effective, hyperlinks are widely used by the general public in a way that is
not consistent with either U.S. standards for copyrighted works or European
standards for presumed knowledge. The likely result of these cases is either
that many people will violate the law unknowingly or that large companies will
be forced to implement various blunt technological measures to limit use of
hyperlinks, harming online discourse and greatly adding to the difficulty of
finding smaller websites that are not already well-known. U.S. law, in
particular, is making it increasingly more difficult to share media online
without paying licensing fees of some sort, despite the fact that a substantial
majority of the population does share all types of media constantly from site
to site.
GS
Media’s knowledge standard and Svensson’s “new public” ideas might be
on the right track if they were made to more closely fit existing industry
practices and consumer expectations, rather than try to change the behavior of
the public. We do trust that someone
posting a link is not attempting to harm our computers or luring us into
committing crimes. Therefore it can be reasonable to hold someone liable for
their links if the link and its context show that they knew (or clearly should
have known) that they were leading people to something harmful. But we do not
and courts should not require someone making a hyperlink to investigate broadly
or continually monitor their hyperlinks to ensure that nothing changes in a way
that becomes illegal. Nor should site owners be held strictly liable because
they make money when context and content do not make it clear that the owner
meant actual harm. As the roads of the internet, hyperlinks should be treated
akin to road construction: a construction crew might be liable for building a
faulty road, but they are not liable years later when the owner of the property
allows it to become overgrown.
Jacob Rogers is Senior Legal Counsel at the
Wikimedia Foundation. His work includes international litigation, government
requests and Trust & Safety work for the Wikimedia Foundation across
multiple jurisdictions. He can be reached at jrogers at wikimedia.org.