Advanced Copyright Issues on the Internet - Fenwick & West LLP

considered a derivative work. One could argue that the material on the linked site is neitheraltered by the link nor “incorporated” into the linking site, but is seen in its original form whenthe user arrives there as a result of the link.Viewed a different way, one could treat a site as a virtual collective work comprised ofall material available to be viewed by the user in the course of browsing through the site. Linkscause an “incorporation” – at least in a virtual sense – of the linked material into this collectivework, thereby in some sense creating a derivative work. If the linked site material enhances thevalue of the linking site, the linked site owner might argue that the linking site is “based upon”the linked site and therefore constitutes a derivative work. 2089The fair use or implied license doctrine may apply to many out links, because it is nodoubt the case that many site owners will want their material disseminated as widely as possible,and references in to the site through links from other sites will be considered desirable.However, in some instances the linked site owner may argue that out links cause harm, and suchharm should defeat a fair use or implied license defense. For example, nonconsensual links mayresult in burdensome amounts of traffic on the linked site from users the linked site is nottargeting. The owner of the linked site could argue that such unwanted traffic prevents theowner from distributing copyrighted material on its site to its desired audience, thereby harmingthe potential market for its material. Alternatively, if the linking site is undesirable for somereason in the eyes of the linked site, the linked site might allege the linking diminishes thecommercial value of its copyrighted material at the linked site. This might be the case, forexample, if a site distributing pornographic material were to link to a religious site distributingreligious material. 2090In addition to the issues of direct infringement discussed above, if a linked site containsinfringing material, the link may give rise to contributory infringement on the part of the linkingsite, particularly if the linking site is promoting the copying, transmission, public display orpublic performance of material at the linked site. As noted in the previous Section, the SPAinstituted a complaint against an OSP for contributory infringement based in part on theprovision of links to Internet sites where unauthorized copies of the plaintiffs’ software could be2089 “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musicalarrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction,abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17U.S.C. § 101.2090 Linking also raises a number of trademark issues. If the link consists of the linked site’s company name,trademark or logo, there is a danger of confusing site visitors about the source, affiliation or sponsorship ofeither the linking or the linked company’s goods or services. The language surrounding a link may also implyan endorsement by the linked company. For example, a list of links to “our many satisfied customers” states anendorsement by those customers of the linking site owner’s activities. From the opposite end, a linking siteshould carefully consider any explicit or implied endorsement it makes of the linked site’s goods or servicesover which it has no control. Linking to a site that contains defamatory material might make the linking entityitself liable as a “re-publisher” of the defamatory material by pointing users to the material. See Kopitzke,“Think Links: Web-Page Owners Should Consider Legal Consequences of Hypertext Links to Others’ Sites,”San Francisco Daily Journal (Dec. 20, 1996), at 5.- 454 -