We’ve talked a little in the past about whether there’s any liability in liking to copyrighted material. A British man that ran a streaming video website was sentenced to four years in prison. A Dutch website was hit with a large fine for linking to some photos. Until now, we haven’t covered any domestic cases involving hyperlinks and copyright – until now. Earlier this month, a federal court in New York issued an opinion in Pearson Education, Inc. et al. v. Ishayev & Leykina. The plaintiffs were four big publishing companies, and here’s the nature of the dispute:
Plaintiffs allege that Ishayev and Leykina violated the Copyright Act, 17 U.S.C. §§ 501 et seq., and willfully infringed their copyrights, by selling unauthorized copies of instructors’ solutions manuals over the internet. Plaintiffs seek to preliminarily and permanently enjoin defendants and their agents from selling the manuals.
(For his part, defendant Ishayev counterclaimed for libel, and sought $3.5 million in damages. Just to keep things interesting.)
More specifically, the defendants were charging money to potential customers, and then sending them links to the copyrighted documents, which they kept on a cloud storage server. They got caught when one of their customers turned out to be an employee of one of the plaintiffs. For the hearing on the 1st of August, plaintiffs sought victory by summary judgment. The court declined to grant them this. There are a couple of reasons for this: one involves the manuals’ questionable status as derivative work, and the other, that matters more to us, concerns “Infringement by Hyperlink”:
Th[e] manuals were accessed by [plaintiff's employee] Siewert through hyperlinks emailed to her by Ishayev, as opposed to Ishayev’s having attached digitally copies of those manuals to the emails he sent to Siewert. Such action, without more, is insufficient to establish an act of infringement. A question of fact remains as to whether Ishayev engaged in infringement by other means, i.e., by uploading the infringing material to filesonic.com.
As a matter of law, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement. 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 § 106.
Ishayev denied having personally uploaded the material, and plaintiffs’ evidence that he did was described by the court as “circumstantial”, and so it could not grant summary judgment.