Academy Award winning director, screenwriter and producer Quentin Tarantino has filed a copyright action in the U.S. District Court of Los Angeles against Gawker Media for facilitating the dissemination of the unproduced script for his film The Hateful Eight. As the media outlet that attempted to purchase the video of Toronto Mayor Rob Ford allegedly smoking crack, Gawker is no stranger to controversy.
The lawsuit alleges Gawker “made a business of predatory journalism” by posting multiple links to the entire script on its blog, the Defamer. Further, according to Tarantino’s claim, Gawker encouraged users to download the copyrighted content with the cheery invitation to “Enjoy!” and has refused to remove the posted URL links.
The law in the United States currently does not recognize hyperlinking itself as a form of copyright infringement. In Perason Educ., Inc.v. Ishayen, 2013 WL 3948505 the United States Federal Court held that merely providing a link to a copyrighted content is not direct infringement of the copyright in that content. The court stated:
A hyperlink (or HTML instructions directing an internet user to a particular website) is the digital equivalent of giving the recipient driving directions to another website on the internet. A hyperlink does not itself contain any substantive content; in that important sense, a hyperlink differs from a zip file. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner’s five exclusive rights under [Section 106 of the Copyright Act].
However, Tarantino’s claim asserts that Gawker has gone well beyond merely providing a link to the copyrighted work and is itself contributing to the infringement. Contributory copyright infringment can be found on the part of someone who is not directly infringing but nevertheless is making contributions to the infringing acts of others. Tarantino alleges that Gawker is materially contributing to copyright infringement by knowingly providing links to third party sites where users can access his content which Gawker knew had been leaked without his permission. To succeed on contributory infringement, Tarantino must show that the webmaster or service provider actually knew or should have known of the infringing activity.
Contributory infringement has often been claimed against file sharing sites and search engines which exist as directories of others’ content. Although it has yet to file a Defence, Gawker has publically stated that it is a news site and publication of the link was connected to informing its readership of a matter of public interest – the earlier leak of The Hateful Eight, Tarentino’s public complaints about the leak and the resultant public discourse.
Although there are no decided cases on copyright hyperlinking in Canada, the Supreme Court of Canada has refused to find that a bare hyperlink to defamatory content constitutes “publication” for purposes of a defamation claim, absent any statement endorsing the truth of its contents (Crookes v. Newton, 2011 SCC 47). The Court’s conclusion echoes the roadmap analogy used in the United States:
Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
In sharp contrast, the Federal Court of Australia has deviated from the approach in North America in Cooper v. Universal Music Australia Pty. Ltd.  FCAFC 187. There the court found the defendant guilty of “authorizing” copyright infringement by embedding hyperlinks on his website to remote 3rd party sites which users could use to have music transmitted directly to their computers.
This highly publicized case may well yield some interesting law about how much editorial content moves a a content-neutral bare link along the continuum to contributory infringement. Gawker may also have to defend itself as a news site which will test the boundary of what constitutes “news reporting” and whether what it did was “fair”. Both the U.S. and Canada have a fair use (or fair dealing) exemption for news reporting so this case will, no doubt, be watched from both sides of the border. And, whatever the outcome, it’s all publicity if The Hateful Eight ever does make it to screen.