Wikilegal/Linking Legal Considerations
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Wikimedia Projects are online, collaborative projects to which any user can contribute. In theory, these contributions may include links to third party websites that arguably contain infringing materials. The Wikimedia Foundation (“WMF”) does not provide any links itself, as content on the Projects is generated by users. There are certain legal considerations worth noting for users when addressing the potential liability that may arise when linking to such websites.
17 U.S.C. § 512(d) (popularly known as the DMCA) provides immunity to hosting providers of user-generated content from contributory liability for infringement “by reason of the provider referring or linking users to an online location containing infringing material or infringing activity.” Because of this provision, entities that host user content, like WMF, are not subject to liability when users post links to infringing material. But plaintiffs or prosecutors might try to claim users are liable for posting certain links.
User Liability for Posting Links to Third-Party Infringing Sites 
Civil Liability 
We have not found any U.S. case law that directly addresses the liability of a user who posts links to an infringing site.
That said, a user who posts a link with the intent and purpose of directing others to engage in infringement arguably may risk liability in an action for contributory infringement. In Intellectual Reserve v. Utah Lighthouse Ministry, the U.S. District Court for Utah, for example, held that a site that provides URLs to other sites that host infringing material could be liable for contributory infringement. The court did not base this assessment solely on the provision of URLs; instead they pointed out that the site had also encouraged users to access the copyrighted material and posted additional information on how to obtain it.
Similarly, in Arista Records, Inc. v. Mp3Board, Inc. the U.S. District Court for the Southern District of New York held that a site that provides links to copyrighted works could potentially be liable for contributory infringement. As with Intellectual Reserve, the court did not solely rely on links as the basis for imposing liability. The court pointed to encouragements the site owners had made to users, as well as assistance the site owners gave to users looking for particular songs. Although these cases do not provide any clear-cut rules, they, along with other cases on secondary liability, indicate that the actions and intent behind linking to infringing material may well matter.
It is also worth noting that contributory liability requires direct infringement. If a given website, for example, does indeed contain only the announcements of groups releasing infringing material, and the site does not itself contain any links to infringing material or exhortations to piracy, the danger of incurring secondary liability merely for linking to that website is arguably lower, but that risk is not eliminated.
Criminal Liability 
U.S. copyright law provides for criminal penalties for copyright infringement in limited circumstances. We could not find any case law directly addressing the issue of criminal liability for user-posted links, but the general requirements for criminal liability do provide some guidance.
To start with, criminal copyright infringement requires that the requirements of civil copyright infringement be met: If there is no civil copyright infringement, there is no criminal copyright infringement.
Furthermore, criminal copyright infringement requires a willful act of infringement. What is and isn’t willful copyright infringement is not clearly defined, and courts have come to widely differing interpretations. The statute does at least stipulate that, “for purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.”
To shed some light on the issue, a look at how courts handle willfulness in other contexts is useful. The Supreme Court, in considering the willfulness requirement for criminal violations of the tax code, held that “the standard for the statutory willfulness requirement is the voluntary, intentional violation of a known legal duty.” Some circuit courts have applied a similar standard in criminal copyright cases. Perhaps most tellingly, courts interpreting the willfulness requirement for enhanced statutory damages for civil infringement have consistently held that willfulness requires that the defendant act with knowledge that her conduct constitutes copyright infringement.
There is the additional question of whether the theories of contributory liability used in civil copyright actions to hold people who link to infringing material liable could be applied to a criminal case. Contributory liability for copyright infringement exists because judges created it in civil infringement cases; it is not based on any statute. We could not find any cases discussing the theory of contributory liability for copyright infringement laid out by the Supreme Court in a criminal context, although the ongoing case of U.S. v. Puerto 80 Projects, S.L.U., currently pending in the Second Circuit and the Southern District of New York, could possibly address them. Given this uncertainty, it remains to be seen whether the courts will allow criminal liability for defendants who themselves do not commit or conspire to commit any infringing acts.
Theories of secondary liability present generally in criminal law, such as conspiracy and aiding and abetting, could also potentially ensnare people who link to infringing material. Although we could not find any cases applying these doctrines to criminal copyright actions, the U.S. government has brought charges against various parties for conspiracy to commit criminal copyright infringement. How these charges will fare in court remains to be seen.
- 17 U.S.C. § 512(d). See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1175 (9th Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1025 (9th Cir. 2001)) (“We have held that the limitations on liability contained in 17 U.S.C. § 512 protect secondary infringers as well as direct infringers.”) slip opinion available at http://www.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf
- Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1294 (D. Utah 1999), available at http://www.internetlibrary.com/pdf/Intellectual-Reserve-Utah-Lighthouse-Ministry.pdf.
- Intellectual Reserve at 1295. But the analysis relied on the court’s holding that the mere act of clicking on the link was itself infringement, as clicking on the link created a copy of the copyrighted content on the computer of the person who clicked the link. This view, however, was recently rejected by the 2nd Circuit, see Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), although it is arguably still the rule in the 9th Circuit, see MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), available at http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm.
- Arista Records, Inc. v. Mp3Board, Inc., 2002 Copr. L. Dec. P 28483, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002)
- Arista at *3.
- See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (“One infringes contributorily by intentionally inducing or encouraging direct infringement.” [emphasis added])
- MGM at 930. See also, Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971), available at http://law.justia.com/cases/federal/appellate-courts/F2/443/1159/246268/ (“[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”); UMG Recordings, Inc. v. Bertelsmann AG, 222 F.R.D. 408, 411 (N.D. Cal. 2004) (“Liability under this theory requires substantial participation in a specific act of direct infringement.”).
- See Benjamin H. Glatstein, Tertiary Copyright Liability, 71 U. Chi. L. Rev. 1605 (2004) (arguing for liability for those that assist contributory infringers, even if they have no contact with the direct infringement).
- 17 U.S.C. § 506
- U.S. v. Wells, 176 F. Supp. 630 (S.D. Tex 1959), available at http://www.leagle.com/xmlResult.aspx?xmldoc=1959806176FSupp630_1693.xml&docbase=CSLWAR1-1950-1985, see also Kelly v. L.L. Cool J., 145 F.R.D. 32, 39 (S.D.N.Y. 1992) aff'd sub nom. Kelly v. L.L. Cool J, 23 F.3d 398 (2d Cir. 1994) (“In addition, the criminal claims add nothing to the plaintiff's case because conduct that does not support a civil action for infringement cannot constitute criminal conduct.”); Nimmer on Copyright, 15.01[A] at 15-4.
- 17 U.S.C. § 506(a)(1). See also, Marx. v. U.S., 96 F.2d 204, 207 (9th Cir. 1938), available at http://scholar.google.com/scholar_case?case=13571229904989261890&hl=en&as_sdt=2&as_vis=1&oi=scholarr; Nimmer on Copyright, 15.01[A] at 15-6 (“Although innocent intent is generally not a defense in a civil action, the United States government may bring criminal action only for willful infringements.”)
- 17 U.S.C. § 506(a)(2)
- Cheek v. United States, 498 U.S. 192, 201 (1991), available at http://supreme.justia.com/cases/federal/us/498/192/case.html (quotations omitted)
- See United States v. Moran, 757 F. Supp. 1046, 1049 (D. Neb. 1991), available at http://cyber.law.harvard.edu/people/tfisher/IP/1991%20Moran%20Abridged.pdf (discussing cases in the 7th and 9th Circuits using specific intent in defining willfulness and contrasting this with cases in the 2nd and 9th Circuits requiring only an intent to copy).
- Cable/Home Communication v. Network Productions, 902 F.2d 829, 851 (11th Cir.1990), available at http://bulk.resource.org/courts.gov/c/F2/902/902.F2d.829.88-5647.89-5081.html; Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir.1988), available at http://bulk.resource.org/courts.gov/c/F2/855/855.F2d.233.87-3831.html; RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 779 (8th Cir.1988), available at http://bulk.resource.org/courts.gov/c/F2/845/845.F2d.773.87-5204.87-5195.html; Fitzgerald Publishing Co., Inc. v. Baylor Publishing Co., Inc., 807 F.2d 1110, 1115 (2d Cir.1986), available at http://law.justia.com/cases/federal/appellate-courts/F2/807/1110/311559/. See Moran, 757 F. Supp at 1050 (discussing the willfulness requirement in the civil context); Nimmer on Copyright 14.04[B] at 14-77. For cases where a court used the civil interpretation of willful in a criminal case, see United States v. Manzer, 69 F.3d 222, 227 (8th Cir. 1995), available at http://law.justia.com/cases/federal/appellate-courts/F3/69/222/609345/; United States v. Cross, 816 F.2d 297, 303 (7th Cir. 1987), available at http://bulk.resource.org/courts.gov/c/F2/816/816.F2d.297.86-1759.86-1750.86-1749.html (“In order to understand the meaning of criminal copyright infringement it is necessary to resort to the civil law of copyright.”)
- Despite the argument for using this standard in the criminal context, there are still cases applying a lower standard for willfulness in the criminal context. See United States v. Backer, 134 F.2d 533, 535 (2d Cir. 1943) (holding that intent to copy qualified as willful). But see United States v. Wise, 550 F.2d 1180, 1194 (9th Cir. 1977), available at http://bulk.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-1141.html (“We agree with appellant that the Government had the burden to prove, in addition to the usual requirement of an act intentionally done in violation of the law, that appellant knew that the film which he sold had not been first sold by the copyright owner.”); United States v. Cross, 816 F.2d 297, 300 (7th Cir. 1987), available at http://bulk.resource.org/courts.gov/c/F2/816/816.F2d.297.86-1759.86-1750.86-1749.html (upholding a jury instruction that stated “(t)he wor[d] ‘willfully’ as used in the statute means the act was committed by a defendant voluntarily, with knowledge that it was prohibited by law, and with the purpose of violating the law, and not by mistake, accident or in good faith.”). See also Brief In Opposition To Petition Seeking Release Of Seized Property at 22, Puerto 80 Projects, S.L.U. v. United States, No. 11-CV-3983 (PAC) (FM) (S.D.N.Y. July 11, 2011), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2011-07-11-United%20States%20Memorandum%20in%20Opposition.pdf (admitting that the civil standard governs in the 2nd Circuit despite Backer).
- See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984) (“The Copyright Act does not expressly render anyone liable for infringement committed by another. . . . The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”)
- For a summary of the Project 80 case, see http://www.citmedialaw.org/threats/united-states-v-puerto-80-projects-slu,. For more analysis see http://www.techdirt.com/blog/?company=puerto+80
- For a more detailed analysis of the issues inherent in applying a theory of contributory liability to criminal copyright cases, see http://cyberlaw.stanford.edu/blog/2012/01/megaupload-lot-less-guilty-you-think
- For example, in the MegaUpload case, the government alleges that the defendants engaged in conspiracy to commit copyright infringement. For a more thorough analysis of the likelihood of the success of this argument, see http://cyberlaw.stanford.edu/blog/2012/01/megaupload-lot-less-guilty-you-think.