Linking Copyright to Home Pages
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Submitted to the
April 1, 1996
Linking Copyright to Home Pages
The use of links to connect documents on the World Wide Web raises two
important copyright questions: (1) does linking to a document constitute
copyright infringement? and (2) are links copyrightable? Because links contain
only the URL address of the document being linked to, they do not violate any of
the copyright owner's exclusive rights. Since links are addresses, a collection
of links is copyrightable as a compilation. After Feist, a compilation of links
is afforded only limited copyright protection.
Linking Copyright to Home Pages
Mary just started her own business. She created a Web page where users can
follow her links to the coolest documents on the World Wide Web. It took her
weeks of searching to find the best sites and then a few more days to create all
the links--which she plans on updating once a week. She set up a password
system so that anyone who wants to use her Web page has to pay her ten dollars a
month. In her first four months she made almost five thousand dollars. Now the
author of one of the pages she has linked to is suing her for copyright
infringement. He wants her to either share her profits or stop linking to his
document. That's not her only headache. She's thinking of filing her own
copyright infringement suit against a former friend who is setting up a business
similar to hers. He's created links to many of the same documents.
How will these cases turn out? Can Mary create links to a Web site without
getting the author's permission? Can she stop her competitor from copying her
links? Many law reviews, trade journals, and daily newspapers have published
articles concerning copyright in the digital age, but only a handful have
discussed one of the most common potential forms of copyright infringement--that
of "linking" different documents on the Internet.1
One reason links have received such little copyright attention is that linking
documents is still a relatively new phenomenon and there have been no court
cases to date involving links. However, these issues will become more important
as publishers seek to assert their property rights in information available on
the Internet. A recent issue of a business journal framed the question
succinctly: "If I create a home page and I have my copyrighted material on that
page with my trademark, and someone unilaterally links up to it, this raises the
question of whether they're publishing and they're violating my copyright."2
Linking documents is akin to placing references to other works in a printed
text. For example, a printed article regarding copyright law might refer to a
famous Supreme Court case. The reader of the article would have to go to a law
library or some other source to actually read the court case. The World Wide
Web makes it possible for an electronic version of the article to be linked to
the court case so that when the reader reaches the point in the article where
the case is referenced, the reader could select the link and immediately see the
court case. It has been widely noted that this ability to link documents is
revolutionizing both information retrieval and the act of reading itself.3
This Article will examine two related copyright questions involving links: (1)
does linking to a document constitute copyright infringement, and (2) are links
copyrightable? After a brief discussion of the technology involved, this
Article will argue that linking does not infringe on an author's copyright.4 It
will then discuss to what extent links are protected by copyright.
I. Surf's Up!
Few Americans over the age of five could have survived 1995 without hearing at
least one reference to the Internet or the Information Highway.5 Some
researchers estimate that in the United States alone, as many as 15 million
people already have access to the Internet,6 and the number of users is expected
to grow exponentially in the next year alone.7
The fundamentals of the Internet and the World Wide Web are fairly
straightforward. The Internet is both the hardware which connects thousands of
computer networks worldwide,8 and the protocols which allow these networks to
communicate with each other.9 The Internet includes e-mail, discussion groups,
chat groups, and information resources.10
Each individual network that is connected to the Internet usually consists of a
host computer (the server) and a number of remote computers or terminals (the
clients).11 For example, most universities have computer networks whereby
hundreds of personal computers (clients) are connected to a large mainframe
computer (the server) via fiber optic cable. Users often can connect to the
server from a remote location using a modem and a telephone line.12
The Internet is the interconnection of thousands of these servers, each with
its own Internet Protocol (IP) address.13 Every document has its own "address"
on the server, similar to the way files are stored in a personal computer.14 A
user can access a document by specifying its address, which is known as its
Universal Resource Locator (URL).15 A primary purpose of servers is to transmit
documents to whomever requests them.
There are a variety of protocols, such as ftp, telnet, and gopher, that allow a
client to search for, and request documents from, a server.16 The World Wide
Web (WWW or Web) is a newer set of protocols that utilizes HyperText
Transmission Protocol (HTTP) for communication between the server and the
client.17 Client programs, such as Netscape's Navigator and Microsoft's
Explorer, request information from servers. These programs are known as Web
One advantage of HTTP is that it can "read" older protocols such as ftp and
gopher. Another advantage is that HTTP lets the author use graphics, video, and
audio in her documents. A third advantage (the topic of this paper) is that
the programming language of HTTP allows documents to be linked together--even if
they are stored on different servers.18 This language, known as HyperText
Markup Language (HTML), is how Web sites (home pages) are typically created.19
Documents which include HTML codes are known as Web documents. An author who
creates a Web document can create links by inserting a special code into the
text or graphics. The code contains the URL of whatever document the author
wishes to link her document to. When a user clicks on (selects) the text or
graphic, the browser requests whatever document is specified by the URL.20 The
server where the document is located then transmits the information to the Web
There are three different types of links: intra-page, intra-system, and
inter-system.21 Intra-page links connect different parts of the same document.
For example, a long document may have a link at the end which takes the user
back to the beginning. Intra-system links connect different documents on the
same server. An intra-system link on a university's server might connect the
home pages of two different departments. An inter-system link connects
documents on different servers. Thus, a document concerning intellectual
property law on a university's server might be connected to the home page of the
United States Patent Office. Millions of documents can be linked together
through the World Wide Web.
Home pages do not have a standard form.22 They range from a single screen
containing only text and no links, to elaborate multi-screen documents with
audio, video, and hundreds of links. Many individuals have home pages where
they include biographical data and links to some of their favorite Web sites.
For example, an individual may include her name, e-mail address, and a
photograph of herself on her home page. If her hobbies included kayaking, she
might include a link to a home page created by a regional kayaking club.
Businesses, universities and other organizations often have home pages that
include extensive links to other documents maintained by the organization and
related organizations. Thus, the local kayaking club's home page might be
linked to its membership list, a calendar of upcoming events, a description of
the club's history, and photos from a recent kayaking trip. It might also be
linked to the home pages of other kayaking clubs around the world.
The World Wide Web is only a few years old,23 yet its growth has been
phenomenal. One survey estimates that the Web grew from 1 million users in 1994
to 8 million users in 1995.24 Another survey predicts the Web will have more
than 30 million users by 1997.25
Most universities allow their faculty, staff, and students to create Web sites
on the university's server for free. Many businesses have also established
their own Web sites, either by purchasing their own server, or by leasing space
on an existing server. Anyone who wants to create his or her own home page can
rent space on servers from one of countless Internet service providers.26
Before exploring the copyright issues involved in creating links, a few
important technical aspects of links need to be noted. First, Document A can be
linked to Document B without the author of B's knowledge or consent. However, A
cannot link to a specific word or picture in B unless that word has its own URL
address.27 Thus, links generally go to the beginning of a document or to a link
within the document that has its own URL address.
Second, the link is a one way street--sort of. Someone browsing through A can
follow A's link to B. That user can backtrack from B to A because her Web
browser "remembers" the path that was taken. However, a user who starts at B
has no way to connect to A, and furthermore, doesn't even know a link exists
from A to B. So if the author of document A wants to link to a specific section
of B or have there be a two-way link, she must contact the author of document B
to arrange the link.
The third important technical note is that for a user to "view" a document,
that document must be placed into the random access memory (RAM) of the user's
computer. Otherwise, no image will appear on the user's monitor.28 Whether
this constitutes the making of a copy is one of the heated issues in the current
copyright debate, and one which will be discussed later in this paper.
Finally, the author of document B can use a variety of security measures to
prevent anyone from viewing (or linking to) her document. These measures
include encryption of the document, or various levels of passwords to prevent
unauthorized access. In this way, the author of B can charge users each time
they access the document.29
II. Does Linking Infringe on Copyright?
Copyright grew out of the development of the printing press in the fifteenth
century, and it has been adapting to new communication technologies ever
since.30 The rapid expansion of the Internet has led to many proposals for
modifying the current law,31 including a recent proposal by the Clinton
Administration's Information Infrastructure Task Force.32 The Task Force's
proposal would codify recent controversial court decisions regarding the
Internet and computers that are discussed below.33
The 1976 Act grants the owner of a copyrighted work certain exclusive rights,
which are themselves subject to limitations contained elsewhere in the statute.
The most important limitation is that copyright protects only original
expression, not facts or ideas.34 The copyright owner has the exclusive right
to (1) reproduce the work, (2) prepare derivative works, (3) distribute copies
of the work, (4) perform the work publicly (excepting pictorial, sculptural, or
graphic works, sound recordings and architectural works), and (5) display the
work publicly (excepting sound recordings and architectural works).35 Because
these rights may overlap, someone may infringe on more than one right at the
To successfully sue for copyright infringement, the plaintiff must prove: "(1)
ownership of a valid copyright, and (2) copying of constituent elements of the
work that are original."37 For the purposes of this article, we will assume
that Document B consists of copyrightable subject matter and that its author
holds a valid copyright in the work.
The author of A may be liable for infringement in one of three ways: (1) direct
infringement, (2) vicarious infringement, or (3) contributory infringement.
Direct infringement occurs if the link itself violates one of B's five exclusive
rights. Vicarious or contributory infringement may result if, by selecting the
link, the user violates any of B's exclusive rights.
Vicarious infringement occurs when the third party (the author of A) has the
ability to supervise or control the direct infringer (the user), and the third
party benefits from the infringement. 38 Contributory infringement occurs when
the third party knows the infringement is taking place and "induces, causes, or
materially contributes to the infringing conduct..."39 One court summed up the
distinction between the two by saying, "[J]ust as benefit and control are the
signposts of vicarious liability, so are knowledge and participation the
touchstones of contributory infringement."40
While the author of A may benefit from a user selecting her link to B, she
cannot supervise or control the user. Therefore, a link from A to B does not
involve vicarious infringement. However, by providing a link, the author of A
is inducing the user to view B. If viewing B violates any of the copyright
owner's exclusive rights, the author of A may be liable for contributory
infringement.41 But there can be no contributory infringement without direct
A. The reproduction right.
1. Direct infringement.
The first enumerated right is the right to reproduce the work.43 The
reproduction right is violated when a copy is made of the original work.
According to the 1976 Act, a copy is a material object "in which a work is fixed
by any method now known or later developed, and from which the work can be
perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device."44
The link from A to B only contains the URL address of B. In creating the link,
the author of A has not reproduced any part of B except for B's URL. A URL is a
"fact," and as such, it is not protected by copyright.45 One could argue that
since the URL for B includes whatever name B's author gives to the document, it
contains protected expression.46 However, short phrases such as titles and
names are generally not copyrightable.47 Thus, A has not directly infringed B's
2. Contributory infringement.
When a user selects a link from A to B, the information contained in B is
downloaded into the random-access memory (RAM) of the user's computer.48 When
the computer is turned off, all the information in RAM is lost. Keep in mind
that a copy must be fixed in a tangible medium.49 A series of controversial
cases have suggested that loading a computer program into RAM for viewing
creates a fixed copy and therefore may constitute copyright infringement.
The most important of these cases is MAI Systems, Corp. v. Peak Computer,
Inc.,50 in which the defendant was a service company that repaired computers
that were manufactured by MAI. When the service technicians turned on the MAI
computer, the operating software was automatically loaded from the computer's
hard drive to the same computer's RAM. The Court of Appeals for the Ninth
Circuit held that loading the software into RAM created a copy. The court cited
the report of the National Commission on New Technological Uses of Copyrighted
Works (CONTU), which stated that, "the placement of a work into a computer is
the preparation of a copy..."51 As the MAI court duly noted, neither the prior
cases which it cited for support, nor the CONTU report itself, distinguished
between placement in RAM or read-only memory (ROM).52
The context of the CONTU statement was ensuring that the rightful possessor of
a copyrighted computer program would be able to use the program on her
computer.53 In this sense, the Report seemed to be contemplating the right of
the user to load a copy of the program into the computer from a floppy diskette.
There is no indication that the authors of the report believed that once a
program was in the computer, its transfer from ROM to RAM would also be
considered a copy.
The MAI court stated that, "[S]ince we find that the copy created in RAM can be
'perceived, reproduced, or otherwise communicated,' we hold that the loading of
software into the RAM creates a copy under the Copyright Act."54 The court
argued that since the computer may be left on indefinitely, the copy in RAM is
"fixed in a tangible medium" as required by the 1976 Act.55 This interpretation
of the 1976 Act has been endorsed by MAI's progeny,56 and the Information
Infrastructure Task Force.57 By this reasoning, a slide projector which
projects an image on a screen is making a copy. After all, the image on the
screen can be "perceived, reproduced or otherwise communicated" for as long as
the slide projector is left on.58 Loading a document into RAM for the purpose
of displaying on a monitor is directly analogous to projecting a slide onto a
The MAI decision, and its endorsement by the Information Infrastructure Task
Force have been roundly criticized by leading copyright scholars.59 The MAI
decision appears to be at odds with the legislative history of the 1976 Act.
The House report accompanying the Act states, "[T]he definition of fixation
would exclude from the concept purely evanescent or transient reproductions such
as those projected briefly on a screen, shown electronically on a television or
other cathode ray tube, or captured momentarily in the 'memory' of a
computer."60 The report went on to distinguish between a reproduction and a
"Reproduction" under clause (1) of section 106 is to be distinguished from
"display" under clause (5). For a work to be "reproduced," its fixation in a
tangible form must be "sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of more than
transitory duration." Thus, the showing of images on a screen or tube would not
be a violation of clause (1) [the reproduction right], although it might come
within the scope of clause (5) [the public display right].61
Thus, the legislative history suggests that Congress did not intend for a
document temporarily stored in RAM to be considered a reproduction. If viewing
B does not create a copy, then there is no direct infringement by the user.
Even if their interpretation of the law is wrong, one must accept that the
courts have held that a document in RAM is a copy. Does this mean the viewer
has infringed B's reproduction right? To answer this question one must
determine who made the copy that resides in the user's RAM. The author of B
placed the document on a server. When a user who is viewing A clicks on
(selects) the link to B, the user's Web browser requests the document from the
B's server. It is B's server that actually generates the "copy" which is sent
to the user.62 Thus it is B, not A, that authorizes the reproduction.
A leading Supreme Court case involving contributory infringement offers insight
as well. In Sony Corporation of America v. Universal City Studios, Inc.,63 the
issue was whether Betamax videotape recorders (VTRs) sold to consumers by Sony
were being illegally used to record broadcast television programs. Universal
argued that Sony was knowingly supplying the means by which consumers were
committing copyright infringement, and therefore Sony should be liable for
contributory infringement. Universal relied heavily on Kalem Co. v. Harper
Bros.;64 in which the producer of an unauthorized film dramatization of a
copyrighted book was held liable for selling the film to distributors, thereby
contributing to the infringement of the author's public performance right.
In rejecting Universal's argument, the Sony Court distinguished Kalem, stating,
"The producer in Kalem did not merely provide the "means" to accomplish an
infringing activity; the producer supplied the work itself, albeit in a new
medium of expression. Sony in the instant case does not supply Betamax
consumers with respondents' works; respondents do."65 As in Sony, it is B's
author who is supplying the user with the work. A is simply providing the user
with an alternative method for viewing B (just as time-shifting in Sony provided
the viewer with an alternative method for viewing Universal's programs).
Recently, the MAI decision was applied to Internet documents for the first time
in Religious Technology Center v. Netcom On-Line Communication Services, Inc.66
In Netcom, an Internet user posted Religious Technology Center (RTC) documents
on a USENET discussion group. Netcom operated one of the servers which stored
and distributed the discussion group. In a footnote, the court said that under
MAI, "Browsing technically causes an infringing copy of the digital information
to be made in the screen memory..."67 However, later in the same footnote, the
court said that, "[Browsing] is the functional equivalent of reading, which does
not implicate the copyright laws and may be done by anyone in a library without
the permission of the copyright owner. [Even if one rejects the reading
analogy], [a]bsent a commercial or profit-depriving use, digital browsing is
probably a fair use."68 Since viewing a document does not infringe the
reproduction right, providing a link does not constitute contributory
B. The adaptation right.
1. Direct infringement.
The copyright owner's second exclusive right is the right to prepare derivative
works (the adaptation right).69 According to the 1976 Act, a derivative work is
"a work based upon one or more preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any other form in
which [the preexisting] work may be recast, transformed, or adapted."70 The
purpose of the adaptation right is to allow the copyright owner to control more
than simply verbatim forms of copying.71
Generally, to violate the derivative right, the infringing work must copy part
of the underlying work.72 As discussed in the previous section regarding the
reproduction right, a link from A to B does not incorporate or copy any portion
of B. Thus, a link does not create a derivative work.
2. Contributory infringement.
One commentator has suggested that linking documents may create a derivative
work by creating a "literary 'add-on.'"73 An add-on modifies an existing work
and is used in conjunction with that work. If A contains links to specific
sections of B, one could argue that A modifies the way a user views B. In
effect, A is creating an abridged version of B. With printed texts, A would
need to copy the desired sections of B to be an abridgment (and, hence, a
derivative work). But with links on the World Wide Web, A can create an
abridged version of B without copying. Thus, the notion that A is an add-on
(i.e. a supplementary work). The "add-on" concept has appeared in recent court
cases involving computer programs.
In Midway Manufacturing Co. v. Artic International, Inc.,74 the Court of
Appeals for the 7th Circuit ruled that a computer chip manufactured by Artic to
speed up a Galaxian video game manufactured by Midway infringed on Midway's
copyright. The court ruled that the speeded up version of the video game
constituted a derivative work. Artic argued that speeding up the video game was
like speeding up a phonograph record and so should not be considered a
derivative work. The court rejected this argument based on the fact that there
is a market for speeded up video games while there is no market for speeded up
Almost a decade later, a similar case was heard in the 9th Circuit. In Lewis
Galoob Toys, Inc. v. Nintendo of America, Inc.,76 Galoob manufactured a device
(a "Game Genie") to be inserted between a Nintendo home video game cartridge and
the Nintendo home video game control unit. The device could be programmed to
change certain characteristics of Nintendo video games. The court ruled this
was not a derivative work and distinguished it from Midway v. Artic by pointing
out that the earlier case involved substantial copying of a ROM chip while
Galoob's device involved no direct copying. The court also noted that the
device manufactured by Artic was used in the commercial setting of a video
arcade, while Galoob's device was used in a noncommercial home setting.77
The Galoob court stated in dicta that derivative works should not encompass
works whose sole purpose is to enhance the underlying work. Neither a
spell-checking program used in conjunction with a word processor, nor a
kaleidoscope that allows one to view a work in a new way should be considered a
derivative work. The court said, "The Game Genie is useless by itself; it can
only enhance, and cannot duplicate, a Nintendo game's output. Such innovations
rarely will constitute derivative works under the Copyright Act."78 The Galoob
court went on to state that even if the Game Genie were a derivative work, its
use should be considered a fair use.79
The Galoob court ruled that a computer add-on that does not incorporate any
part of the underlying work is not a derivative work. Under the same reasoning,
a "literary add-on," such as a series of links, should not be considered a
derivative work either.80 The links from A to B cannot exist independently of
B. Unlike a printed abridgment or adaptation of a work, the links do not
duplicate the original work or act as a substitute for it.
C. The distribution right.
1. Direct infringement.
The copyright owner has the exclusive right to "distribute copies or
phonorecords of the copyrighted work to the public by sale or other transfer of
ownership, or by rental, lease, or lending."81 The distribution right allows
the copyright owner to sue a distributor of unauthorized copies even if that
distributor did not make the copies himself. This has been an especially
important right with regard to the Internet, since the person who distributes a
document on the World Wide Web does not necessarily make a copy.
In Netcom, where a user placed an RTC document on the Netcom computer, the
court rejected RTC's argument that Netcom should be liable for direct
infringement of RTC's distribution right. The court reasoned that only the
person who uploads the document to the server should be liable for direct
infringement.82 Similarly, in Sega Enterprises, Ltd. v. MAPHIA,83 a bulletin
board operator was found liable for contributory infringement rather than direct
infringement for allowing users to upload and download copyrighted Sega video
games. These cases suggest it is the person who places the document on the
server who is liable for direct infringement of the distribution right.84 Since
A merely provides a link to the server where B is located, the author of A
should not be liable for direct infringement.
A useful analogy is a telephone answering system. One can program a number
into speed dial and then call the number to reach a business's answering machine
and listen to their outgoing message.85 B's server is like an answering
machine. When B's author places B on the server, it is akin to placing an
outgoing message on the answering machine. The URL that designates B's location
is the "phone number" used to reach the answering machine. When the author of A
creates a link to B, she has essentially put B's phone number (the URL) into a
speed dial memory. 86 When the user selects the link, the user's Web browser
"calls" B's server. B's answering machine (the server) then transmits the
outgoing message (B) to the user's Web browser for the user to view. The
crucial point is that A does not control the distribution of B. If B's author
no longer wants to distribute B, she can take the document off the server or
restrict access with encryption or passwords. So even if a copy of B has been
distributed, the distribution is being made by the author of B, not A.
2. Contributory infringement.
As long as the copyright owner of B has placed it on the server, its
distribution is authorized and A cannot be held liable for contributory
infringement. But suppose the author of A creates a link to a document that has
been placed on a server without the copyright owner's authorization. If the
author of A has knowledge of the direct infringement, she may be liable for
contributory infringement, since her link encourages the further distribution of
In MAPHIA and in Playboy Enterprises, Inc. v. Frena,87 bulletin board operators
were found liable for allowing users to upload and download copyrighted
materials on their systems. In both cases, the defendants knew that the
material was being uploaded without the copyright owners' permission.
Contributory infringement requires knowledge of the infringing activity. In
Netcom, the court said that "If plaintiffs can prove the knowledge element,
Netcom will be liable for contributory infringement...but where a BBS operator
cannot verify a claim of infringement...the operator's lack of knowledge will be
found reasonable and there will be no liability for contributory
infringement..."88 Of course, documents on the Web are constantly being
updated. The author of A might link to B, and later find that B has added
unauthorized material. A court would have to decide if it is reasonable to hold
the author of A liable in this situation.
D. The public performance and public display rights.
1. Direct infringement.
The copyright owner has the exclusive right to display or perform her work
publicly. According to the 1976 Act:
To perform or display a work "publicly" means: (1) to perform or display it at a
place open to the public...; or (2) to transmit or otherwise communicate a
performance or display of the work ... to the public, by means of any device or
process, whether the members of the public capable of receiving the performance
or display receive it in the same place or in separate places and at the same
time or at different times.89
A display or performance can occur without a copy of the work being made.90
Like the distribution right, the performance and display rights are heavily
implicated by the transmission of documents on the World Wide Web. On the Web,
a work can be displayed or performed or both. For example, a Web site may
include text and pictures which are displayed on a monitor, and moving images
and audio which are performed. The differences between a display and a
performance are inconsequential for the purposes of this discussion.91
When viewing A, B is not being displayed or performed. Therefore, the author
of A is not directly infringing under clause (1) of the definition. However,
the author of A may be liable under clause (2), which includes the transmission
of a work.
Courts have viewed public displays over the Internet much like a distribution.
In Frena, the court held that the public display right was implicated as well as
the distribution right.92 The court stated that "The display right precludes
unauthorized transmission of the display from one place to another, for example,
by a computer system."93 When a user views B, a transmission is clearly taking
place, but it is the author of B who has displayed (or performed) the document
by placing it on the server.94
Listening to the transmission of an answering machine's outgoing message over a
telephone line would also be considered a public performance. If someone lets
you use their phone and dials the answering machine for you, they have not
violated the performance right. By the same token, A is not directly infringing
on the display or performance rights.
2. Contributory infringement.
As with contributory infringement of the distribution right, A may be liable if
it is linked to an unauthorized display or performance.95 But as long as B does
not infringe on someone's display or performance right, viewing B (and
therefore, linking to B) does not constitute infringement.
Under the current law, establishing links from A to B should not be considered
copyright infringement. In fact, if the author of A wanted to charge users for
using her links to B, she could. This would be true even if she did not share
any of her profits with the author of B, and even if the user could access B
directly for free.
III. Compiling Links For Fun and Profit.
A. Creating copyrightable links.
An author who creates links from A to B or other Web sites may wish to be
compensated for her effort in searching for appropriate documents and
establishing the links. For example, there are thousands of Web sites on the
Internet and a particular user interested in movies may find only a few of these
sites to be of interest. Searching through all the sites, or even using a
search program,96 can be tedious. If there is enough demand, the author of A
may want to establish links to all the Web sites relevant to movies and then
charge users who want to use A as a starting point. Can the author of A prevent
someone else for setting up a competing Web site with its own links to the same
movie Web sites?
Because links are facts, they are not copyrightable.97 However, a compilation
of facts (i.e. a database) can be copyrighted.98 "A 'compilation' is a work
formed by the collection and assembling of preexisting materials or of data that
are selected, coordinated, or arranged in such a way that the resulting work as
a whole constitutes an original work of authorship."99
The copyright in a compilation extends only to the material contributed by the
author, and does not extend to any preexisting material.100 For example, an
anthology of poems is a compilation. The author of the anthology can copyright
the arrangement and selection of the poems as well as any original expression
that the author adds. But the author cannot copyright the poems themselves. A
database is a compilation consisting of noncopyrightable facts. If A has links
to B, C, D, et cetera, then A has compiled a database consisting of the URLs for
the documents to which it is linked.
The leading copyright case involving compilations of facts is Feist
Publications, Inc. v. Rural Telephone Service Co.101 In Feist, a local
telephone company which published its own telephone directory sued a publisher
for copying some of its listings. The Supreme Court ruled that factual
compilations must entail some originality as to the selection or arrangement of
the facts they contain.102 Indeed, the Court repeated this test throughout its
opinion: "[I]f the selection and arrangement are original, these elements of the
work are eligible for copyright protection103....A factual compilation is
eligible for copyright if it features an original selection or arrangement of
facts..."104 The Feist Court rejected lower court cases which had held that
factual compilations deserved protection because of the effort that went into
collecting and compiling the data.105
Any expression which the author adds to the facts is, of course, copyrightable:
"Thus, if the compilation author clothes facts with an original collocation of
words, he or she may be able to claim a copyright in this written expression.
Others may copy the underlying facts from the publication, but not the precise
words used to present them."106 So if A includes original descriptions of the
links, those descriptions are copyrightable. However, that protection would not
extend to the links themselves.
The difficult question is what is the requisite level of originality required
in the selection and arrangement of the facts. Feist states that:
The compilation author typically chooses which facts to include, in what order
to place them, and how to arrange the collected data so that they may be used
effectively by readers. These choices as to selection and arrangement, so long
as they are made independently by the compiler and entail a minimum degree of
creativity, are sufficiently original that Congress may protect such
compilations through the copyright laws. Thus, even a directory that contains
absolutely no protectible written expression, only facts, meets the
constitutional minimum for copyright protection if it features an original
selection or arrangement.107
[O]riginality is not a stringent standard; it does not require that facts be
presented in an innovative or surprising way. It is equally true, however, that
the selection and arrangement of facts cannot be so mechanical or routine as to
require no creativity whatsoever. The standard of originality is low, but it
Feist held that a typical telephone directory white pages, with its selection of
basic subscriber information arranged alphabetically, does not possess enough
creativity to qualify for copyright protection.109 The Feist ruling has been
extended by lower courts to business directories as well. 110
However, in Key Publications, Inc. v. Chinatown Today Publishing Enterprises,
Inc.,111 the 2nd Circuit Court of Appeals found that a telephone directory for
businesses located in Chinatown, New York was copyrightable. The court defined
selection as, "the exercise of judgment in choosing which facts from a given
body of data to include in a compilation."112 Because the publisher chose which
businesses to include in its listings and created the categories the businesses
would be listed under, the court found that the directory was copyrightable.
A should be copyrightable as a compilation unless it contains a link to every
Web site relevant to a topic and lists them in alphabetical order. Any
expression A contains (including descriptions of the Web site each link is
connected to) is also protected by copyright. The more difficult question is
whether someone else can set up a similar series of links.
B. How thin is thin?
As the Feist Court noted, "[C]opyright in a factual compilation is thin.
Notwithstanding a valid copyright, a subsequent compiler remains free to use the
facts contained in another's publication to aid in preparing a competing work,
so long as the competing work does not feature the same selection and
arrangement."113 Thus, another author is free to use some of the same links as
In Key, the Court of Appeals found that a competing telephone directory did not
infringe on Key's copyright--even though they shared many of the same
listings--because the competing directory grouped its listings into different
categories and not all of the listings were identical.114 In explaining its
ruling, the court wrote:
There are a finite number of businesses that are of special interest to a
sizable segment of the New York Chinese-American community, and some substantial
overlap among classified business directories compiled for that community is
inevitable. The key issue is not whether there is overlap or copying but
whether the organizing principle guiding the selection of businesses for the two
publications is in fact substantially similar...115
Under the Key analysis, two documents could both be linked to many of the same
Web sites as long as the two documents do not share the same selection and
While the court acknowledged that within a particular category some listings
will overlap, the listings cannot be identical: "If the Galore Directory had
exactly duplicated a substantial designated portion of the 1989-90 Key Directory
-- for example, all its listings of professionals such as medical doctors,
lawyers, accountants, engineers and architects, an infringement action would
The Key court cautions, however, that simply adding or subtracting a single
fact (or link) will not prevent a finding of infringement.117 Similarly, if A
contains links arranged as the "Top 100 Web sites," B cannot avoid infringement
by simply using A's selection to create the "Top 50 Web sites." This is
exemplified by the Key court's reflection on its earlier decision in Eckes v.
Card Prices Update:118
In that case, we held that a guide to baseball cards infringed a previously
published guide, even though the copyrighted guide listed over 18,000 cards and
the infringing guide listed only 5000 cards. Essential to our finding of
infringement was the fact that the 5000 listings duplicated in the infringing
guide were the same 5000 designated as "premium" cards by the copyrighted guide.
Id. at 863. The copyrighted guide selected within the 18,000 a designated group
of 5000 that it described as "premium" cards. The infringing guide then copied
that portion wholesale based upon the same principle of selection.119
Finally, two documents may be able to share the same links because sometimes
there are so few ways of expressing an idea that the idea and its expression
merge. To grant copyright to the expression would eliminate the idea/expression
distinction which is the foundation of copyright law.120
In Skinder-Strauss Associates v. Massachusetts Continuing Legal Education,
Inc.,121 two publishers printed competing legal directories for the state of
Massachusetts. The district court used the merger doctrine in its analysis,
stating: "[T]he merger doctrine applies here because there are so few ways of
compiling listings of attorneys. This is because, by definition, any directory
of lawyers for a given locale will include virtually the same information."122
The Skinder-Strauss court held that the alphabetical listing of Massachusetts
attorneys was not copyrightable, but that other elements of the individual
directories and their overall structure were copyrightable.123 This suggests
that, depending on the subject matter, two documents can share identical links
but that the second document may infringe the copyright of the first if it
copies other elements as well. For example, if A and B both attempted to create
links to all the Web sites that contained information about movies, they might
share many of the same links. But A might be arranged by movie genres while B
is arranged by director. A closer case would be if A and B both created links
to all the Academy Award-winning movies. In that case, the merger doctrine
Anyone who has used the World Wide Web knows that links between documents are
ubiquitous. Fortunately, copyright law suits involving links are not--yet. To
understand the legal implications of links, one must appreciate both the
technical processes involved and the current interpretation of copyright law.
Links are like telephone numbers; when a user selects a link, she is calling a
computer as if it were an answering machine. When the author of Document B puts
B on a server, it is like placing an outgoing message on an answering machine.
Anyone who calls can listen to the message. And just as it is the owner's
answering machine that transmits the message to the caller, it is B's server
that transmits the document to the user.
If Document A contains links to Document B, none of B's exclusive rights are
being infringed, since A simply contains B's "phone number." Even if one
accepts the court cases that have held that a document in RAM creates a copy, no
rights are being violated. This is because the author of B has authorized the
distribution and/or display/performance of B by placing B on a server.
The author of A can charge the user for access to A's links to B -- even if
access to B is free. The trade-off is that A only enjoys a thin copyright in
her selection and arrangement of links. Furthermore, the links themselves are
All of this is to the public's benefit. That anyone can create or follow a
link gives the public the widest possible access to information. The thin
copyright offered to A encourages the development of useful links since the
author of A can be compensated for her effort. At the same time, the limited
nature of the copyright prevents A from creating a monopoly in links and
charging exorbitant prices.
So what about the hypothetical situation presented at the beginning of this
article? Mary will not have to pay the author of the document she has linked
to, but he can reconfigure his document so as to require a password. He would
then be able to charge Mary every time someone selects that link. And unless
Mary's competitor is using her selection and arrangement to organize his own
links, she will not be able to prevent him from competing with her. Which means
Mary will have to lower her prices or offer a superior service. Either way, her
1 See, e.g., Maxine Lans Retsky, The Internet: Answers or More Questions?
Marketing News, Dec. 4, 1995, at 7; Pamela Samuelson, Intellectual Property
Rights and the Global Information Economy, COMM. OF THE ACM, Jan. 1996, at 23;
Pamela Samuelson, Fair Use For Computer Programs and Other Copyrightable Works
in Digital Form: The Implications of Sony, Galoob and Sega, 1 J. INTELL. PROP.
L. 49 (1993); Jenevra Georgini, Through Seamless Webs and Forking Paths:
Safeguarding Authors' Rights in Hypertext, 60 BROOK. L. REV. 1175 (1994); Lance
Rose, World Wide Web Can Ensnare Unwary Users; Potential Copyright Problems
Abound, N.Y.L.J., Feb. 27, 1995, at S3.
2 Joanne Wojcik, Internet Publishing Raises Legal Questions; Copyright
Violations Are Possible, BUS. INS., Feb. 26, 1996, at 21 (quoting William Lard,
general counsel for SunSoft Inc.).
3 See, e.g., George Landow, Hypertext: The Convergence of Contemporary
Critical Theory and Technology (1992), Theodor Nelson, Computer Lib/Dream
Machines (rev. ed. 1987).
4 Previous commentators (See, e.g., Samuelson supra note 1 and Georgini supra
note 1) have tended to rely on a fair use argument to justify links. Fair use
is an affirmative defense that places the burden of proof on the defendant.
Because it is based on an equitable rule of reason and is case-specific, the
outcome is often uncertain. While fair use presents many valid arguments
applicable to this topic, they are beyond the scope of this paper. This author
argues that a fair use defense is not necessary to escape liability for
5 The hyperbole surrounding this new technology has quickly led most
commentators to uncritically accept the super superlative. Thus, the de facto
reference is now "Information Superhighway."
6 Daniel Akst, Postcard From Cyberspace, L.A. Times, Nov. 6, 1995, at D4.
7 In 1996, 89 million people around the world are expected to use the
Internet. GEO Interactive Announces the Mac Version of the EMBLAZE Creator--An
Advanced Authoring Tool Enabling Web Site Creators to Create Their Own Animated
HTML Pages, Bus. Wire, Mar. 11, 1996, available in LEXIS, News Library, CURNWS
8 Brent Heslop & Larry Budnick, HTML Publishing on the Internet For Windows 4
9 Paul Gilster, Finding It on the Internet 21 (1994).
10 There are a number of reference books that describe the various services
available on the Internet. See, e.g., Harley Hahn & Rick Stout, The Internet
Complete Reference (1994).
11 Id. at 13.
12 Id. at 35.
13 Id. at 47.
14 In fact, new technology permits personal computers to function as servers,
eliminating the need for costly mainframe computers. Heslop & Budnick, supra
note 8, at 332.
15 Id. at 9. A typical URL may read:
http://www.indiana.edu/~libweb/index.html The URL consists of various segments:
the protocol used to retrieve it, the server on which it is located, and the
file extension where the document is stored in the server's memory. Id. at 12.
16 Id. at 4. For detailed information on the various protocols and software
programs used to search the Internet, see HAHN & STOUT, supra note 9.
17 Heslop & Budnick, supra note 8, at 7.
18 Id. at 97.
19 Another option is to use a portable document program that allows the user
download the file and the software required to view it. This way the user can
view the file after disconnecting from the Internet. Id. at 15.
20 Id. at 9.
21 Id. at 97.
22 For a description of different types of home pages, see id. at 300-13.
23 The first Web browser was called Mosaic. It was made available to the
public by the National Center for Supercomputing Applications (NCSA) in Nov.
1992. Id. at 5.
24 Bob Metcalfe, From the Ether: Do the Numbers Add Up to an Intoxicated
Internet Facing a Hangover? InfoWorld, Mar. 11, 1996, at 55.
25 GEO Interactive, supra note 7.
26 Heslop & Budnick, supra note 8, at 315-24. The cost for renting space on
a server can be as low as ten dollars per month. Id. at 16.
27 Id. at 109.
28 Id. at 7.
29 Id. at 10-11.
30 Marshall Leaffer, Understanding Copyright Law ' 1.2 (2d ed. 1995).
31 The last major revision of the copyright statute occurred in 1976 with the
passage of the Copyright Act of 1976, 17 U.S.C. '' 101-803 [hereinafter 1976
32 Information Infrastructure Task Force, Intellectual Property and the
National Information Infrastructure: The Report of the Working Group on
Intellectual PROPERTY RIGHTS (Sept. 1995) [hereinafter WHITE PAPER].
33 The White Paper's proposed changes to the 1976 Act have been incorporated
into a bill currently before Congress. S. 1284, 104th Cong., 1st Sess. (1995);
H.R. 2441, 104th Cong., 1st Sess. (1995).
34 "In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work." 17 U.S.C. ' 102(b).
35 17 U.S.C. ' 106.
36 Leaffer, supra note 30, ' 8.2, at 222.
37 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)
(citing Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 548
(1985)). Infringement can occur without copying taking place in the literal
sense, as when one unlawfully distributes or displays a work. See Leaffer,
supra note 30, ' 9.2, at n.3.
38 Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.
1963) (company that leased space to record department was liable for sale of
bootleg records because of beneficial relationship).
39 Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d
1159, 1162 (2d Cir. 1971) (management firm that authorized performance of
copyrighted works is liable for contributory infringement).
40 Demetriades v. Kaufmann, 690 F. Supp. 289, 293 (S.D. N.Y. 1988) (family
that sold lot is not liable for copyright infringement when purchaser copied
architectural plans to build house on the lot, even though family benefited from
the sale and knew of the infringing activity. The court distinguished knowledge
as part of the test for contributory infringement and benefit as part of the
test for vicarious infringement. The court held that vicarious infringement
requires benefit and control; contributory infringement requires knowledge and
41 It is important to distinguish between viewing B and any other potentially
infringing act the user may engage in. By creating a link, the author of A is
not inducing the user to print or store a copy of B, only to view it.
42 Religious Technology Center v. Netcom On-line Communications Servs., Inc.,
907 F. Supp. 1361, 1371 (N.D. Cal. 1995).
43 17 U.S.C. ' 106(1).
44 17 U.S.C. ' 101.
45 17 U.S.C. ' 102(b).
46 The document's author can create the name of the file extension and, if
the author also owns the server, she can create its name as well. Both of these
names are a part of the URL address. For a discussion on Internet addressing,
see HAHN & STOUT, supra note 10, at 47-58.
47 Leaffer, supra note 30, ' 2.7 (C) & n.50 (1995).
48 Heslop & Budnick, supra note 8, at 7.
49 17 U.S.C. ' 101. See supra text accompanying note 44.
50 991 F.2d 511 (9th Cir. 1993) cert. dismissed, 114 S. Ct. 671 (1994).
51 CONTU, Final Report of the National Commission on New TechnOLOGICAL USES
OF COPYRIGHTED WORKS 13 (1979) (hereinafter CONTU REPORT).
52 MAI, 991 F.2d at 519.
53 Contu Report supra note 51, at 13.
54 MAI, 991 F.2d at 519 (quoting 17 U.S.C. ' 101).
56 Advanced Computer Servs. of Mich. v. MAI Sys. Corp., 845 F. Supp. 356, 363
(E.D. Va. 1994); Triad Sys. Corp. v. S.E. Express Co., 31 U.S.P.Q.2d 1239,
1243-44 (N.D. Cal. 1994) aff'd in part, rev'd in part, 64 F.3d 1330 (9th Cir.
1995), cert. denied, 116 S. Ct. 1015 (1996). Both these cases contained facts
almost identical to MAI, and each held that a third party booting up operating
system software into RAM constituted copyright infringement.
57 White Paper, supra note 32, at 28.
58 Even if one argued that the program in RAM represents an intermediate step
between ROM and the monitor, the conclusion is the same: the slide is equivalent
to the program in ROM; its projection on to the projector's lens is equivalent
to the program in RAM (since it will disappear when the machine is turned off);
and its projection onto the screen is equivalent to the program being displayed
on the monitor.
59 See e.g. Jessica Litman, The Herbert Tenzer Memorial Conference: Copyright
In the Twenty-First Century: The Exclusive Right to Read, 13 CARDOZO ARTS & ENT.
L.J. 29, 41; Pamela Samuelson, Intellectual Property Rights and the Global
Information Economy, supra note 1 at 23.
60 H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess. 53 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5666 (emphasis added).
61 Id. at 62, reprinted in 1976 U.S.C.C.A.N. 5659, 5675 (emphasis added).
62 Heslop & Budnick, supra note 8, at 7.
63 464 U.S. 417 (1984).
64 222 U.S. 55 (1911).
65 Sony, 464 U.S. at 436 (emphasis added).
66 907 F. Supp 1361 (N.D. Cal. 1995).
67 Id at 1378, n.25.
69 17 U.S.C. ' 106(2).
70 17 U.S.C. ' 101.
71 See Leaffer, supra note 30, ' 8.5.
72 Id. In one extreme case, an answer manual was found to be an infringing
derivative work of a textbook even though no part of the textbook was
reproduced. Addison-Wesley Publishing Co. v. Brown, 223 F. Supp. 219 (E.D. N.Y.
1963). However, this decision was handed down before the passage of the 1976
Act. See, Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 967
(9th Cir. 1992) (stating that the legislative history of the 1976 Act indicates
that "the infringing work must incorporate a portion of the underlying work in
some form.") (quoting 1976 U.S.C.C.A.N. 5659, 5675) cert. denied, 507 U.S. 985
(1993). The House report accompanying the 1976 Act states, "[T]o constitute a
violation of section 106(2) [the right to prepare derivative works], the
infringing work must incorporate a portion of the copyrighted work in some form;
for example, a detailed commentary on a work or a programmatic musical
composition inspired by a novel would not normally constitute infringements
under this clause." H.R. REP. NO. 94-1476, 94th Cong., 2nd Sess. 62 (1976),
reprinted in 1976 U.S.C.C.A.N. 5659, 5675.
73 Georgini, supra note 1, at 1191-92.
74 704 F.2d 1009 (7th Cir. 1983), cert. denied, 464 U.S. 823 (1983).
75 Id. at 1013.
76 964 F.2d 965 (9th Cir. 1992).
77 Id. at 969.
79 Id. at 972.
80 See Samuelson, supra note 1, at 114.
81 17 U.S.C. ' 106(3). The bill currently before Congress would modify the
wording of '106(3) by adding "transmission" after "lending." See supra note 33.
This would essentially codify the court decisions discussed in this section.
82 Netcom, 907 F. Supp. at 1372.
83 857 F. Supp. 679, 686-87 (N.D. Cal. 1994).
84 But see, Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla.
1993) (in which a bulletin board operator was found liable for direct
infringement for allowing users to upload and download copyrighted photographs
from Playboy magazine).
85 Many newspapers now offer a similar service whereby readers can call a
local telephone extension to here prerecorded information such as weather
updates and sports scores.
86 The alternative to a link would be for the author of A to simply include
B's URL in the text. The user could then manually type the URL into her Web
browser to access B. Thus, the link which A creates simply speeds up this
process by eliminating the need for the user to type B's URL on the command
87 839 F. Supp. 1552 (M.D. Fla. 1993).
88 Netcom, 907 F. Supp. at 1374.
89 17 U.S.C. ' 101.
90 This is why commentators have argued that a document in RAM should
implicate the display or performance right rather than the reproduction right.
See supra text accompanying note 61.
91 The reader should be aware, however, that significant differences do
exist. For a thorough discussion of the display and performance rights, see
Leaffer, supra note 30, '' 8.15-8.26.
92 Frena, 839 F. Supp. at 1556. Accord, Netcom, 907 F. Supp. 1361 (N.D. Cal.
93 Frena, 839 F. Supp. at 1557 (emphasis added) (citing H.R. REP. NO.
94-1476, 94th Cong., 2nd Sess. 64 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,
94 See supra part II.C.1.
95 See supra part II.C.2.
96 These programs are known as "search engines." The most popular versions
include Yahoo! and WebCrawler. The search engines are linked to thousands of
Web sites. Currently, users can use these search engines for free, but the
owners could charge users if they wanted to.
97 See supra notes 34, 45 - 47 and accompanying text.
98 17 U.S.C. ' 103.
99 17 U.S.C. ' 101.
100 17 U.S.C. ' 103.
101 499 U.S. 340 (1991).
102 Id. at 348-49.
103 Id. at 349.
104 Id. at 350.
105 This protection of the author's effort was known as the "sweat of the
brow" doctrine. Id. at 353. In Feist, the Supreme Court went to great length
in rejecting the "sweat of the brow" doctrine. Id. at 351-56.
106 Id. at 348.
107 Id. at 348 (emphasis added) (citations omitted).
108 Id. at 362.
109 Id. at 362-64.
110 ProCD, Inc. v. Zeidenberg, 908 F. Supp. 640 (W.D. Wisc. 1996) (CD-ROM
containing 95 million alphabetized telephone listings is not copyrightable);
BellSouth Adv. & Publishing Corp. v. Donnelley Information Publishing, Inc. 999
F.2d 1436 (11th Cir. 1993) (alphabetized business directory for a given
geographic area is not copyrightable) cert. denied, 114 S. Ct. 943 (1994).
111 945 F.2d 509 (2d Cir. 1991).
112 Id. at 513.
113 Feist, 444 U.S. at 349 (emphasis added).
114 Key, 945 F.2d at 516-17.
115 Id. at 516.
116 Id. at 517.
117 Id. at 514.
118 736 F.2d 859 (2d Cir. 1984).
119 Key, 945 F.2d at 516-17 (emphasis added).
120 Often referred to as the "merger doctrine," this concept owes its origin
to Baker v. Selden, 101 U.S. 99 (1879) (holding that a bookkeeping ledger was
not copyrightable). For a discussion of the merger doctrine and its focus on
the distinction between patent and copyright law, see LEAFFER, supra note 30, at
' 2.12 [B].
121 914 F. Supp 665 (D. Mass. 1995).
122 Id. at 677.
Linking Copyright to Home Pages