FAQ: Questions and Answers

[back to notice text] Question: What is a hyperlink? Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link [back to notice text] Question: Is "deep linking" illegal? Answer: "Deep linking" refers to the creation of hyperlinks to a page other than a website's homepage. For example, instead of pointing a link at http://www.chillingeffects.org, this site's "homepage," another site might link directly to the linking FAQ at http://www.chillingeffects.org/linking/faq . Some website owners complain that deep links "steal" traffic to their homepages or disrupt the intended flow of their websites. In particular, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled its claim against Microsoft and lost a suit against Tickets.com over deep linking. From Ticketmaster v. Tickets.com opinion: Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently. So far, courts have found that deep links to web pages were neither a copyright infringement nor a trespass. [back to notice text] Question: What is an "inline" image? Answer: An "inline" image refers to a graphic displayed in the context of a page, such as the picture to the right here. HTML (Hypertext Markup Language) permits web authors to "inline" both images from their own websites and images hosted on other servers. When people complain about inline images, they are most often complaining about web pages that include graphics from external sources. The legal status of inlining images without permission has not been settled. [back to notice text] Question: What constitutes copyright infringement? Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission: 1. reproduce (copy) the work; 2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression); 3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a); 4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here. [back to notice text] Question: What defenses are there to copyright infringement? Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C. ?107. The fair use doctrine allows the reproduction and use of work, notwithstanding the rightsof the author (17 U.S.C. ?? 106 and 106A), for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use may be described as the privilege to use the copyrighted material in a reasonable manner without the owner's consent. In deciding whether a copier's actions were fair, judges will consider 1. the purpose and character of the copying (certain types of educational copying is allowed) 2. the nature of the original (originals made for commercial reasons are less protected from copying than their purely artistic counterparts) 3. the amount and substantiality of the portion copied (one may not copy the "heart" of a work without the author's permission); and 4. the effect that such copying may have on the market for the original (copying may be permitted if it is unlikely to cause economic harm the original author). Examples of activities that may be excused as fair use include: distributing copies of a section of an article in class for educational purposes; providing a quotation in a book review; and imitating a work for the purpose of parody or social commentary. [back to notice text] Question: What is contributory infringement? Answer: The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy. Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe. To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity. [back to notice text] Question: What is vicarious liability? Answer: Vicarious liability, a form of indirect copyright infringement, is found where an operator has (1) the right and ability to control users and (2) a direct financial benefit from allowing their acts of piracy. User agreements or Acceptable Use Policies may be evidence of an operator's authority over users. The financial benefit may include a subscription fee, advertising revenues, or even a bartered exchange for other copyrighted. Under the doctrine of vicarious liability, you may be found liable even if you do not have specific knowledge of infringing acts occurring on your site. [back to notice text] Question: What are the penalties for copyright infringement, such as making infringing copies of software? Answer: In a civil suit, an infringer may be liable for a copyright owner's actual damages plus any profits made from the infringement. Alternatively, the copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504) Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties include up to ten years imprisonment depending on the nature of the violation. (No Electronic Theft Act, 18 U.S.C. 2319) [back to notice text] Question: What if I need to contact an attorney? Answer: This website is meant as an aid to help you decipher Cease and Desist notices so you can make informed decisions about your course of action. If, after reading this, you think the C&D you received might have some merit, or you think you might engage your opponent in battle even if the C&D is, in your opinion, baseless, consultation with an intellectual property attorney is always a good idea. You can find an intellectual property attorney at www.martindale.com or by calling your state or local Bar Association and asking for a referral. [back to notice text] Question: What are the "trespass to chattels" claims some companies or website owners have brought? Answer: Some Internet companies have claimed that unauthorized use of their servers, such as unsolicited email or robot-generated hits to websites, are a "trespass" to those servers by depriving the owners of the full use of their machines. eBay won an injunction stopping Bidder's Edge from automatically spidering the eBay site to generate auction comparison listings, because the robotic crawler used eBay system resources. The caselaw is far from settled in this area, and some commentators argue that technical means to block the use are more appropriate than legal action. See Tom W. Bell's online casebook for more information about trespass claims.

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