to be streamed through an unauthorized site could constitute an infringing public display or
performance.
- Perfect 10 v. Google (aka Perfect 10 v. Amazon)
The case of Perfect 10 v. Google involved some important rulings in the context of
framing of content taken from third party sites. That case is discussed extensively in Section
II.C.4 above.
- Pearson Education v. Ishayev
In Pearson Education, Inc. v. Ishayev,^3103 the plaintiffs were the publisher of both
textbooks and solutions manuals for those textbooks. The plaintiffs sued the defendants for
copyright infringement for the unauthorized sale and distribution of the solutions manuals, based
both on emailing ZIP files containing digital copies of the manuals and sending hyperlinks
referencing a web site, filesonic.com, from which the manuals could be purchased and
downloaded. The court ruled that, although the former activity constituted direct infringement,
the latter did not:^3104
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.^3105E. Streaming and Downloading
“Streaming” is the digital transmission of a work, usually a musical work, over a network
that results in an immediate playing of the work at the recipient’s end, without storage of a
permanent copy at the recipient’s end. If a permanent copy of a work is stored at the recipient’s
end as a result of a transmission, the act of transmission is usually referred to as “downloading”
(^3103) 963 F. Supp. 2d 239 (S.D.N.Y. 2013).
(^3104) Id. at 242, 249-50 & n.9.
(^3105) Id. at 250-51. In support of its conclusion, the court cited the Perfect 10 v. Amazon and Arista Records v.
MP3Board cases discussed in subsections III.D.8 and III.D.12 above, as well as MyPlayCity, Inc. v. Conduit
Ltd., 2012 U.S. Dist. LEXIS 47313 at *12 (S.D.N.Y. Mar. 30, 2012) (“Because the actual transfer of a file
between computers must occur, merely providing a ‘link’ to a site containing copyrighted material does not
constitute direct infringement of a holder’s distribution right.”) The court noted that the defendant who had sent
the hyperlinks attested that he was not responsible for uploading the infringing material to filesonic.com, and
that the plaintiffs’ evidence that he reproduced or participated in the reproduction of the plaintiffs’ solutions
manuals before furnishing the emails containing the hyperlinks was not conclusive. Id. at 251-52.