Links & copyrights

[Steve]

Can a Web Link Break Copyright Laws?

Carl S. Kaplan
NY Times 9/25/98


Suppose a Web site links to a site that links to another site
containing illegally reproduced photographs. Can the first site be
sued for illegal linking? 

That's just one of the many head-scratchers that were raised by an
unprecedented copyright infringement lawsuit filed and then withdrawn
by Gary Bernstein, a veteran Hollywood glamour photographer. The suit
charged J.C. Penney Inc. and other parties with copyright
infringement. 

Bernstein quietly withdrew his lawsuit on Monday after he lost a
preliminary round in the legal contest. But the fundamental issue he
raised -- liability for linking on the Internet -- is still alive and
will come up for court review another day, legal experts said.

Bernstein's lawsuit is "fascinating and also really scary," said
Jessica Litman, a copyright expert and law professor at Wayne State
University. "If people are going to be liable when they link to
material that they have no reason to think is infringing, then
everyone, everyone who links, will be dragged into court all the
time. That doesn't make good policy sense." 

On September 21, Los Angeles Federal District Court Judge Manuel A.
Real appeared to pour cold water on Bernstein's case when he
dismissed one of the defendants. Conopco Inc. had argued in legal
filings that Bernstein's suit had "no support in the law, and would
effectively eviscerate the Internet as a medium of communication."
Judge Real did not issue an opinion in the matter, but his decision
prompted Bernstein's withdrawal. 

Bernstein, 50, is the author of nine books on photography and a
30-year veteran behind the camera, having snapped Sophia Lauren,
Johnny Carson, Elizabeth Taylor and other celebrities. His foray into
cyberspace law began last year when he was surfing the Web and came
across J.C. Penney's home page. He noticed that the company was
promoting sales of Elizabeth Taylor's "Passion" perfume, which is
made by Elizabeth Arden Co. and Parfums International Ltd., both
divisions of Conopco. 

Bernstein knew the perfume well. In 1989, he had created and licensed
an elaborate photo of Elizabeth Taylor -- which Bernstein dubbed the
"Pink Lady Image" -- in connection with the advertising and promotion
of "Passion." He also took pictures of Elizabeth Taylor on other
occasions, notably in 1986 for the cover of Petersen's Photographic
Magazine. Bernstein calls that shot the "Lavender Image." 

Bernstein discovered during his visit to the J.C. Penney site that by
clicking on a series of hyperlinks to get additional information on
Elizabeth Taylor, he was taken from J.C. Penney's "Passion" subpage
to a site called the Internet Movie Database -- which is not
affiliated with J.C. Penney or the makers of "Passion" -- and then to
a site in Sweden called SUNET, for the Swedish University Network.
The site contains a large collection of celebrity photos, apparently
placed on the Internet by fans. It included two images of Ms. Taylor
-- the Pink Lady Image and the Lavender Image. 

After learning of Bernstein's claim that the SUNET site contained
illegally reproduced images, J.C. Penney removed its link to the
movie database site. As of Thursday, the movie site still linked to
the Swedish site from its collection of information on Ms. Taylor,
with a disclaimer of liability for linking. 

Bernstein sued J.C. Penney, the perfume makers, the Internet Movie
Database and other parties in April, claiming that they were liable
for copyright infringement. Specifically, he claimed the defendants'
use of multiple links intentionally drove Web surfers to the pirated
Taylor photos on the Swedish site. In an interview, he claimed that
if J.C. Penney and the perfume makers wanted to use his pictures,
they should have paid him directly -- instead of indirectly linking
to the photos and reaping the benefit but escaping the fee. 

J.C. Penney denied the charges in court filings, and a spokesman for
the company declined comment on the dropped case. The perfume
companies moved to have themselves dismissed from the suit. 

Conopco's lawyer, Roger Myers of Steinhart & Falconer in San
Francisco, argued that the J.C. Penney site was not guilty of direct
copyright infringement because it didn't make a copy or distribute
the Taylor images. The pictures remained on the site in Sweden. 

Myers, who has represented The New York Times in some legal matters,
further argued that Penney and his client could not be guilty of
"contributory" copyright infringement. This requires that the guilty
party have knowledge of the first infringement and take some action
to aid that infringement. 

In this case, he said, there was no evidence that the J.C. Penney
site or the perfume maker knew the series of links would eventually
lead to a set of pirated pictures abroad. He also asserted that the
chain of links -- six in all -- on the road to the pirated photos was
too long to meet the legal standard for assisting another's
infringement. 

One wrinkle in the case has some legal experts especially worried.
Bernstein asserted that any Web surfer who viewed the pirated Taylor
images on the Swedish site was technically guilty of direct copyright
infringement, and that the defendants are guilty of contributing to
infringement. After all, he claimed, a user's computer makes a copy
of the images viewed, and when the images are illegal, the copy is
illegal. 

In his court filings, Myers said that such copying by an end user was
a "fair use" -- thus immunizing the average Web surfer from such a
lawsuit. But the question has not been answered by a federal
appellate court, which would set a powerful precedent. 

"The case law is not clear on the liability of end users for
copyright infringement," said Mark Lemley, a visiting professor at
Berkeley's Boalt Hall School of Law and a professor at the University
of Texas law school, adding that "fair use" was a strong argument.
"The consequences of holding an end user liable for copyright
infringement would be disturbing for the Net... It might deter
surfing. It might also give some unscrupulous groups the power to
suppress speech or critics." 

Jeffrey R. Kuester, an intellectual property lawyer with Thomas,
Kayden, Horstemeyer & Risley in Atlanta, said he was glad the
Bernstein case was withdrawn. He said he believes there should be
freedom to link on the Net, a right that is protected by the First
Amendment. 

He added, however, that there might be exceptions to the rule if
there was strong evidence that a Web site, in bad faith, linked to
another site in a knowing effort to evade copyright law -- evidence
that he thought was lacking in the Bernstein case. 

The best solution, said Kuester, is for the injured party to go after
the pirate site, rather than the linking sites. "The wrongdoer here
is the pirate site," he said. There should be international treaties
and conventions to punish people for posting copyright-infringing
material, he said. 

For his part, Bernstein agreed that linking on the Net should be
encouraged. But he said he will continue his crusade for "responsible
linking" in the court of public opinion via magazine articles in the
near future. 

"I didn't want to be a poster boy for hurting the Internet or for
trying to limit the freewheeling spirt of the Net," he said,
referring to his decision on Monday to withdraw his lawsuit. "But a
couple of companies were trying to get away with murder." 

Copyright 1998 The New York Times Company 





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