example, if a site distributing pornographic material were to link to a religious site distributing
religious material.^3036
In addition to the issues of direct infringement discussed above, if a linked site contains
infringing material, the link may give rise to contributory infringement on the part of the linking
site, particularly if the linking site is promoting the copying, transmission, public display or
public performance of material at the linked site. As noted in the previous Section, the SPA
instituted a complaint against an OSP for contributory infringement based in part on the
provision of links to Internet sites where unauthorized copies of the plaintiffs’ software could be
found. Linking to a site containing infringing material may also give rise to vicarious liability, if
the linking site derives financial benefit from the link.
As discussed in Section III.C.6(b) above, the DMCA provides a safe harbor under certain
conditions to OSPs who set up out links to infringing material without knowledge of the
infringement.
Inline links may provide an even more direct basis for legal liability than out links. An
inline link causes a reproduction of the linked material to be “pulled in” to the linking site, and
therefore may cause an infringement of the right of reproduction, display, or performance, or
may constitute the creation of an unauthorized derivative work, just as if material had been
clipped from a printed source and placed in one’s own material. An inline link may also cause
an infringing access or transmission of copyrighted material under the WIPO treaties.
Although beyond the scope of this paper, both out links and inline links may raise issues
of trademark infringement as well as copyright infringement. The trademarks of the linked site
are often used as an icon on which the user may click to reach the linked site, and the trademark
owner may argue that such use constitutes an infringement. In addition, both out links and inline
links may give rise to allegations of false implications of sponsorship or endorsement of the
linking site by the company affiliated with the linked site or material, or of confusion as to
source of the linked material.
There have been a number of cases challenging linking and framing on copyright
grounds:^3037
(^3036) 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 of
either the linking or the linked company’s goods or services. The language surrounding a link may also imply
an endorsement by the linked company. For example, a list of links to “our many satisfied customers” states an
endorsement by those customers of the linking site owner’s activities. From the opposite end, a linking site
should carefully consider any explicit or implied endorsement it makes of the linked site’s goods or services
over which it has no control. Linking to a site that contains defamatory material might make the linking entity
itself 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.
(^3037) In addition to the United States cases discussed in text, in Jan. 2001, an online European recruitment company,
StepStone, obtained an injunction in Germany against OFiR, a Danish media group, preventing OFiR from deep
linking (bypassing its home pages) to StepStone’s web site. The injunction was based on new European laws