reproductions, public performances, public distributions, public displays, digital performances of
sound recordings, and/or importations to occur when the user reaches that site and the infringing
material is downloaded, imported and/or performed or displayed to the linking user. Even if
material on the destination site is not infringing of its own right, the reproductions, distributions,
and displays that occur as a result of the out link may not be authorized, since the out link may
have been established (as is generally the case) without the explicit permission of the owner of
material on the destination site. Under the WIPO treaties, the result of clicking on the out link
may be to generate an unauthorized access and transmission of the destination material. Or the
out link itself may be considered to be an unauthorized “making available to the public” of the
material on the destination site – the owner of the destination site may wish to retain complete
control of how and when information on its site is presented to the public.
It is unclear whether an out link might also be considered the creation of an unauthorized
derivative work. Viewed in one way, an out link could be considered nothing more than a
reference to another work, much like a citation in a law review article, that should not be
considered a derivative work. One could argue that the material on the linked site is neither
altered by the link nor “incorporated” into the linking site, but is seen in its original form when
the user arrives there as a result of the link.
Viewed a different way, one could treat a site as a virtual collective work comprised of
all material available to be viewed by the user in the course of browsing through the site. Links
cause an “incorporation” – at least in a virtual sense – of the linked material into this collective
work, thereby in some sense creating a derivative work. If the linked site material enhances the
value 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.^3035
The fair use or implied license doctrine may apply to many out links, because it is no
doubt 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 such
harm should defeat a fair use or implied license defense. For example, nonconsensual links may
result in burdensome amounts of traffic on the linked site from users the linked site is not
targeting. The owner of the linked site could argue that such unwanted traffic prevents the
owner from distributing copyrighted material on its site to its desired audience, thereby harming
the potential market for its material. Alternatively, if the linking site is undesirable for some
reason in the eyes of the linked site, the linked site might allege the linking diminishes the
commercial value of its copyrighted material at the linked site. This might be the case, for
(^3035) “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical
arrangement, 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.” 17
U.S.C. § 101.