Linking Liability Limited

The United States District Court for the Central District of California has taken a further, although not particularly groundbreaking, step toward limiting the potential for civil liability for linking from one website to another. In BERNSTEIN v.J.C. PENNEY, INC. 1998 WL 906644 (C.D. Cal.) the court considered a multiple linking case where a perfume manufacturer and J.C. Penny, Inc. were sued for copyright infringement when the J.C. Penny site was hyper-linked to the web site of a third party which in turn contained links to numerous other sites including one containing infringing copies of the plain-tiff’s photographs of the ac-tress Elizabeth Taylor, the spokesperson for the manufacturer’s perfume.

The court granted a motion to dismiss the matter citing the defendant’s arguments that "(1) a company whose product is merely displayed on another entity's website cannot be held li-able for any infringement by the author of that website; (2) linking cannot constitute direct infringement because the computer server of the linking web-site does not copy or otherwise process the content of the linked-to site; and (3) multiple linking cannot constitute contributory infringement because (a) Internet users viewing of the material at issue is not infringing and thus there was no direct infringement in the United States to which [the defendant] could contribute, (citations omitted) (b) linking "is capable of substantial non-infringing uses" and thus cannot support a claim for contributory infringement (citations omitted) and (c) the Court cannot infer from the facts alleged that [the defendant] knew the photos had been posted to [the infringing site] and multiple linking does not constitute substantial participation in any infringement where the linking website does not mention the fact that Internet users could, by following the links, find infringing material on another web-site. (citations omitted)"

The effect of this opinion is that at least where there is only a series of links allowing the transportation of the user from one site to another, without financial gain and without knowledge of the existence of the infringing material, the imposition of liability for copyright infringement against a third party is unlikely.