The internet could not function without a healthy dose of fair use and implied licensing. Otherwise, copyright law would bring it to its knees. Retweeting a tweet or quoting a forum post requires a reproduction of somebody else’s copyright-protected expression. Posting a link to a website, which often involves excerpting content from the target site, means you are probably copying something. Even the simple act of visiting a web page stores a copy of that page on your computer.
All of these could be deemed copyright infringement if not for fair use exceptions and the operation of implied licenses. But where is the line?
Linking Is (Almost) Always Fair Use.
The most basic of these actions, directing users from one web page to another, is typically free and clear from liability for copyright infringement. The Central District of California (Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 , 2000 WL 525390 (C.D.Cal. Mar. 27, 2000)) and the Ninth Circuit (Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)) have ruled on this topic and it is considered by most analysts to be settled law. Even deep linking, the act of directing users to a specific interior page of a website rather than to its home page, is safe. No court in the US has ever found a defendant liable for copyright infringement based on mere linking.
Why “almost always” and not always? Well for starters, I don’t want you calling me up when you get sued and telling me it’s all my fault. Secondly, if you knowingly link to something that clearly infringes somebody’s copyrighted work, you are opening yourself up to contributory copyright infringement liability. The obvious example of this bootleg music, videos, or software downloads. Don’t do this.
Also, be careful about embedding! Under the hood the actions may be almost identical. Embedding is usually just the act of pointing to files or software on another server and making them appear inline on your own website. However not every court is moved by this so called “Server Test.” In Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018), the court treated embedding far less favorably than standard linking. They distinguished the case from Perfect 10, thus creating a modern split in how to treat embedding a viral social media post:
In Perfect 10, Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance. This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not. Both the nature of Google Search Engine, as compared to the defendant websites, and the volitional act taken by users of the services, provide a sharp contrast to the facts at hand.
Id. at 596.
Proceed with caution.
Aggregating Might Be Fair Use, But It Depends.
The internet is full of aggregators, from news bots on Twitter to gossip bloggers like Perez Hilton to podcasters, YouTubers, and other content creators whose entire content strategies rely on discussing other people’s content. Quoting from a third-party content creator, sometimes linking to them as well in the process, is arguably a necessary function of the internet post-Web 2.0. There must be limits to this, though, and this is where the analysis of fair use gets difficult.
It should be said, early and often, there are no hard and fast rules in fair use analysis. This is not an attempt to create guidelines to decide whether your news aggregating operation is violating copyright law. (Also, don’t take legal advice from a blog.) Without wading deeply into the typical four factors of fair use, it can be said that as a best practice, news aggregators should avoid replacing their sources. The goal should be to summarize, comment on, and provide attribution.
Side note: there’s a valuable discussion to be had about the hot news doctrine and how that limits the idea that aggregation can be fair use. That will have to be saved for another post.
Copying Everything Is (Guess What?) Not Fair Use.
It’s true that facts cannot be copyrighted:
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
17 U.S.C. § 102(a) (emphasis added).
In no case does copyright protection for an original work of authorship extend to any idea … regardless of the form in which it is described, explained, illustrated, or embodied in such work.
17 U.S.C. § 102(b) (emphasis added).
However, somebody’s written or spoken account of a set of facts is absolutely the subject of copyright. Copying an entire article word-for-word, even if you provide attribution, is not likely to pass muster. It does not matter that “information wants to be free.” The way that information was expressed does not want the same thing.
I’m picking on Bill O’Reilly here, but it is common practice for news commentators to literally read someone else’s work on their platform as a precursor to discussing it. Before making that decision, you should understand the following things:
- This is 100%, without question copyright infringement.
- Just because you see people doing this a lot does not mean it is okay.
- Just because you see people doing this a lot does not mean they’re getting away with it. You never know who has content sharing agreements with other content creators.
- Fair use, if it applies here, is an affirmative defense. It is not a right. That means you are admitting to infringing someone else’s copyright but you are claiming you have a legally acceptable reason for your infringement.
- A fair use defense will not protect you from a DMCA takedown. What it does is potentially give you a tool to defend yourself in what would likely be a long, protracted, and expensive legal battle.
I should also note that it does not matter if content was posted anonymously, under a pseudonym, or behind a screen name. You cannot copypasta a bunch of 4chan posts and make them into a coffee table book. Those anonymous posts are still protected by copyright law.
Don’t Forget Those Pesky Terms Of Service That You Probably Agreed To.
Absent any express agreements to the contrary, if you publish something online (comments, forum posts, blog articles, etc.) you own the copyright and all the rights that come with it. In reality, there will rarely be a situation where this is the end of the analysis. Most online service providers include a clause in their legal documentation covering copyright ownership and licensing of user-generated content (e.g., photos, videos, and text). Here’s an example from Facebook:
Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Meta Products you use.This license will end when your content is deleted from our systems.
Source: Facebook Terms of Service
Language like this will likely prevent you from (for example) suing someone who shares your Facebook post to their blog using first-party sharing tools. Because you’ve given Facebook the relatively unchecked right to distribute your content, another person sharing your post to their website using Facebook share functionality is protected.
Off the top of my head I can’t think of a service that lays claim to copyright ownership of UGC, but theoretically this is possible. This would probably require a service with a “click-wrap” agreement (perhaps multiple) that makes it explicitly clear that posting content to their platform comes with a simultaneous assignment of copyright ownership in that content. Check the terms of service before you share anything that’s valuable to you.