LawFont.com

Is linking to websites without permission against the law? Generally not. But Apple may not be so far off the mark by demanding that comedy website Something Awful remove a link posted to one of Apple’s own internal service manuals. (The service manual is posted at a third website, which was not authorised to reproduce the manual, and not Something Awful itself.)

However, as pointed out on Out-Law, the truth may be that Apple’s complaint has not put the company in a “tricky and potentially embarrassing situation.” Although in general linking does not violate copyright or other applicable laws, links to infringing material may expose the linking party to contributory copyright infringement. In other words, posting the link, while not a direct infringement of copyright, might be deemed to encourage others to infringe copyright by dowloading the infringing material (in this case, the manual).

The case most often cited in this context is Ticketmaster Corp., et al. v. Tickets.Com, Inc. (U.S. District Court, Central District of California; March 27, 2000), which established that linking does not constitute copyright infringement. The facts in that case did not, however, require the court to consider contributory liability for copyright infringement.

Although it did not result in a final decision, Intellectual Reserve, Inc v Utah Lighthouse Ministry, Inc (75 FSupp2d 1290 (D Utah 1999)) provides some useful judicial reasoning on this point. In that case, the court observed that unauthorised links to infringing material may expose the linking party to contributory copyright infringement. The defendants had posted URLs to web pages which contained unauthorised copies of a copyright Mormon Church handbook. In a preliminary ruling, the court noted that, by posting URLs of the pages containing infringing material, and otherwise guiding users to infringing websites, the defendants were “actively encouraging” copyright infringement, and could be contributorily liable. However, the judge considered the posting of URLs (as plain text, without hyperlinks) as only one of several factors leading to such liability. The case settled, with the defendants agreeing to remove the links to the infringing copies.

The court’s decision in the DeCSS lawsuit (Universal City Studios v Corley) also provides some useful reasoning, although the Second Circuit relied upon anti-circumvention provisions in finding that Eric Corley had infringed copyright in CSS code. Again, the objection was not to linking per se, but to the fact that Corley’s popular hacker journal (called 2600) linked to infringing material (in this case, CSS code itself).

Did Apple intend to rely on this argument when demanding that the link be removed? Probably not, if the text of Apple’s letter to the offending website is anything to go by. According to The Register, the letter from Apple read as follows:

The Service Source manual for the MacBook Pro is Apple’s intellectual property and is protected by US copyright law. Linking to the manual on your website is an infringement of Apple’s copyrights. We therefore must insist that you immediately take all necessary steps to remove the Service Source manual and any other Apple copyrighted material from your site and to prevent further unauthorized use or distribution of Apple intellectual property.

Apple’s assumption that Something Awful had control over the infringing copy of the manual, coupled with companies’ general misunderstanding of when linking is/is not copyright infringement, suggests that Apple did not intend to rely on a contributory copyright infringement argument. But they may have stumbled on one instead.