A link to another website might get you in trouble. Many websites include links to other websites. It’s a useful way to build browser traffic to the website and to benefit the linked website. But what happens if clicking on the link sends your user to a website that’s infringing on someone’s copyright? In the U.S., most courts have held that linking isn’t contributory copyright infringement because there’s usually no way to control or stop the infringement on the linked website. Due to a recent case in Europe, the same may not be true in the E.U. The Court of Justice of the E.U. ruled in GS Media BV v. Sanoma, that linking to a website that contained infringing material was infringement. The E.U. court held that the defendant was liable because it knew or had reason to know that the link sent a user to a website with infringing material.

WHY YOU SHOULD KNOW THIS. In the U.S., we have three types of copyright infringement: (1) direct; (2) contributory; and (3) induced. The law surrounding the different levels of infringement is well developed. In each type, the element of intent plays an important role. If the originator intended to infringe or help another to infringe, then the originator is liable for copyright infringement. The GS Media decision goes beyond intent and rests on “knew or should have known”. Of course, to know or should know something and then go ahead can rise to the level of intent. But, it’s not always evident if a linked website contains infringing material. The most troubling is the “should have known” prong. Exactly what does “should have known” entail? It’s a slippery standard to try to prove and defend. Hopefully, U.S. courts will not adopt this standard. (Photo Courtesy of www.onewaystock.com)

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