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Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives

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Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2018 Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives Jane C. Ginsburg Columbia Law School, [email protected] Luke Ali Budiardjo Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Comparative and Foreign Law Commons, Intellectual Property Law Commons, International Law Commons, Internet Law Commons, and the Science and Technology Law Commons Recommended Citation Jane C. Ginsburg & Luke A. Budiardjo, Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives, 41 COLUM. J. L. & ARTS 153 (2018). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2063 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. GINSBURG AND BUDIARDJO, LIABILITY FOR HYPERLINKS TO INFRINGING CONTENT, 41 COLUM. J.L. & ARTS 153 (2018) Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives Jane C. Ginsburg* and Luke Ali Budiardjo** ABSTRACT Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This Article will first address the international norms that domestic laws of states members to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the E.U. and the U.S., have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under U.S. and E.U. regimes, despite their apparently different approaches, in fact converge. Abstract .................................................................................................................. 153 Introduction ............................................................................................................ 155 I. International Standard ..................................................................................... 155 II. E.U. Law on Liability for Hyperlinking ......................................................... 160 A. Harmonization of the Law of Communication to the Public as Applied to the Facilitation of Infringement by Hyperlinking and Other Means ................................................................................................. 162 * Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia Law School. Thanks for comments and suggestions to Susy Frankel, Daniel Gervais, Sam Ricketson, and Pekka Savola. ** J.D. Candidate 2018, Columbia Law School. © 2018 Ginsburg and Budiardjo. This is an open access article distributed under the terms of the Creative Commons Non-Commercial, No Derivatives (CC BY-NC-ND) license (http://creativecommons.org/licenses/by-nc-nd/4.0/). 153 GINSBURG AND BUDIARDJO, LIABILITY FOR HYPERLINKS TO INFRINGING CONTENT, 41 COLUM. J.L. & ARTS 153 (2018) 154 COLUMBIA JOURNAL OF LAW & THE ARTS [41:2 1. Criteria Applicable to All Communications to the Public by Making Available ........................................................................ 168 2. Criteria Specific to the Intermediaries Who Facilitate Unauthorized Access to Works by Hyperlinking or Other Means ..................... 169 3. Is the “New Public” Still a Relevant Criterion? .......................... 169 B. Comparison with International Norms ............................................... 170 C. Filmspeler and Ziggo: The Flip Side of the Coin of Art. 14 of the eCommerce Directive? ....................................................................... 171 III. U.S. Law on Liability for Hyperlinking ......................................................... 176 A. A. Direct Liability for Hyperlinking in the United States ................ 176 1. Statutory Basis for Copyright Coverage of Hyperlinks .............. 176 2. The Server Rule and Perfect 10 v. Amazon ................................. 177 3. Analysis of the Server Rule ......................................................... 179 a. The Server Rule, Statutory Authority and Misplaced Metaphors ............................................................................. 179 b. The Server Rule and Its Implications for In-line Linking .... 190 c. The Server Rule and the International Obligation to Implement the Making Available Right ............................... 191 B. Secondary Liability for Hyperlinking in the United States ............... 192 1. Implications of Treating Hyperlinking Under Secondary Liability ....................................................................................... 192 2. Secondary Liability Doctrines in the United States .................... 193 a. Contributory Infringement ................................................... 195 b. Inducement of Infringement ................................................. 199 C. The Digital Millennium Copyright Act and Safe Harbor Under U.S. Law .................................................................................................... 200 1. Basic Requirements for Qualification for DMCA Safe Harbor under § 512 .................................................................................. 202 2. Specific Requirements for Qualification for Safe Harbor Under § 512(d) .......................................................................................... 204 IV. Comparative And International Law Perspectives On U.S. And E.U. Hyperlinking Law ...................................................................................... 214 A. Consistency of Notice-and-Takedown Regimes with International Norms ................................................................................................. 214 B. Comparison of E.U. and U.S. Rules on Liability for Hyperlinking ... 218 1. Lack of Liability for Linking to an Authorized Public Source ... 218 2. Liability for providing a link vs. Liability for facilitating actual access through a link? .................................................................. 219 3. Comparing U.S. standards for secondary liability and E.U. standards for direct liability ......................................................... 220 4. Comparing Safe Harbor regimes in the U.S. and the E.U. .......... 223 GINSBURG AND BUDIARDJO, LIABILITY FOR HYPERLINKS TO INFRINGING CONTENT, 41 COLUM. J.L. & ARTS 153 (2018) 2018] LIABILITY FOR HYPERLINKS TO INFRINGING CONTENT 155 INTRODUCTION Hyperlinks connect Internet users to content residing on the Internet. “Simple” links take the user to a website’s home page from which she may navigate to specific works; “deep” and “in-line” or “framing” links bring the user directly to the content the user seeks, in the latter case by presenting the content “framed” by the website the user first consulted to locate the requested works.1 Linking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This Article will first address the international norms that domestic laws of states members to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the E.U and the U.S., have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by Internet service providers. We will conclude with an assessment of the extent to which the outcomes under U.S. and E.U. regimes, despite their apparently different approaches, in fact converge. I. INTERNATIONAL STANDARD Because hyperlinks enable users to access content residing on the Internet, one may conceptualize the provision of a hyperlink as
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