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All the News That's Fit To Post and Link: Federal Court Clears Up Legal Risks

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Tuesday July 03, 2012
Free Dominion is a Canadian-based political news website where users regularly post articles or link to online content for the purposes of political debate. On January 10, 2008, an eleven-paragraph column by National Post columnist Jonathan Kay was posted to the site. When the Post complained in April 2010, the column was replaced with shorter excerpt that included the same headline along with 3 full paragraphs and one half-paragraph. A month later, a site user posted a link to a photograph that was posted on the photographer's website. The photograph itself was not posted as only a link was used.

These postings and links were not particularly unusual - similar actions occur millions of times every day - yet soon after, Free Dominion was hit with a copyright infringement lawsuit claiming the posting and the link violated the Post and photographer's copyright.
 
My weekly technology law column (Toronto Star version, homepage version) notes that last week, the Federal Court of Canada issued its ruling, dismissing both claims (along with a claim over the posting of a second article for which the limitation period to sue had expired). The decision has enormous implications for Internet users, news organizations, and free speech in Canada as it removes much of the legal uncertainty surrounding sharing information online.

The court dismissed the Post claim over the article excerpt on two grounds. First, it ruled the amount of copying involved did not constitute a "substantial part" of the work and therefore there was no infringement. While many assume that anything more than a sentence or two goes beyond insubstantial, the court's ruling sends a signal that a more liberal approach is possible. If the decision is upheld (an appeal seems likely), it will have significant implications for copying in a wide range of venues including collective licensing for educational institutions.

Second, the court also ruled that even if the copying was substantial, it was still non-infringing since it qualified as fair dealing. The court noted that fair dealing should be given a broad interpretation and that the "news reporting" category could include posts of excerpts to an online discussion forum.

The fair dealing analysis is crucial since it affirms that copying several paragraphs of an article to report on its contents is itself news reporting. The decision alleviates legal concerns for bloggers, news aggregators, and other online sites that often capture a news headline along with a paragraph or two to provide the reader with an introduction to the article's contents.

The court's analysis of linking to the photograph also addresses a key issue as it had no trouble concluding that the link was not copyright infringement. The court rightly noted that the photographer authorized the communication of the work by posting it on his own website and was able to remove it if he did not want others to link to it. From a legal perspective, the court said that the communication of the work could not be viewed as unauthorized, since the photographer had implicitly authorized others to access the photo by posting it online.

This aspect of the decision should largely eliminate fears that linking to copyright materials somehow raises potential legal risks. Last year, the Supreme Court of Canada ruled against attributing a defamation claim to such links and now the Federal Court has concluded that links to authorized postings cannot be said to constitute unauthorized communication and therefore infringement.

For Internet users accustomed to posting, linking, tweeting, pinning, or otherwise communicating the news of the day online, they can breathe a sigh of relief as the decision sends a strong signal that such activities fall within the law.
Comments (10)add comment

Albin said:

It's probably the advertising
Quick first look at Free Dominion, it appears to be a message board rather than a news aggregator (compare RC Politics.) Not having seen the posts, my guess is the Post would only be legitimately concerned if the excerpt did not contain a URL link and was substantial enough to be an effective substitute for reading the full article on its own site, where traffic "pageviews" and advertising are important to the business model. The photographer's URL issue, as described, is a head scratcher.
July 03, 2012

Shawn H Corey said:

Linking Is Not Copying
"The court rightly noted that the photographer authorized the communication of the work by posting it on his own website and was able to remove it if he did not want others to link to it. From a legal perspective, the court said that the communication of the work could not be viewed as unauthorized, since the photographer had implicitly authorized others to access the photo by posting it online."

It's about time!
July 03, 2012

D Morgan said:

Isohunt Case Effect
So, if linking is not infringing then it appears to me Isohunt is not guilty. Or am I missing something?

D
July 03, 2012

Crockett said:

...
How will this affect Access Copyright's inclusion of linking in their collective licensing?
July 03, 2012

Ray Saintonge said:

One area still unclear
The decision does not dispel uncertainties around the limitations issue, or the matter of when a copyright owner "could reasonably have been expected to know" about an infringement. If I post possibly infringing mmaterial today that should start the limitatiion clock running. As long as infringing online material becomes a continuing infringement that resets the clock for every day that it is there the uncertainty remains.

While it is to be expected that owners of recent material will be diligent aboout protecting their rights, owners of older material may not have even known about their rights, or even that they are owners. Tracing the owners may be theoretically possible, but only after extraordinary effort, and at a cost far in excess of the market value of the material in question. Some may be truly orphaned, but that requires proving a negative.
July 03, 2012

JWBlunden said:

@D Morgan
"So, if linking is not infringing then it appears to me Isohunt is not guilty. Or am I missing something? "

The reason the linking in this case is not illegal is because the creator himself put up the picture. "the photographer had implicitly authorized others to access the photo by posting it online [himself]."

With Isohunt, the files were not uploaded by the creator of the work anywhere, but were copied by another individual.
July 03, 2012

Byte said:

This is scary...
"Rhe Federal Court has concluded that links to authorized postings cannot be said to constitute unauthorized communication and therefore infringement."

I sincerely hope that is not meant to be exhaustive. Links should never be considered 'communication of the work'. Basically what they are saying is that LINKING TO a work is only legal when the work itself is authorized to be where you are linking to.

That means the onus is on the linker! Linking to a picture on someone's facebook page? You better hope it's there legally. Because otherwise YOU are guilty of copyright infringement!

July 03, 2012

Devil's Advocate said:

Re: Isohunt
@JWBlunden:

"With Isohunt, the files were not uploaded by the creator of the work anywhere..."

In order to compare the Isohunt question with the linking issue being discussed, you have to follow through with the logic you started with...

Lets straighten out one major point:
It is not up to the one providing a link to first "check for permission". The only one who can be liable for infringement is the actual uploader.

There can't be an infringement where the content in question isn't being offered.

In the Isohunt example, the creator or rights holder may not have uploaded the content, but neither did Isohunt. There's also the matter that linking does not constitute publishing or distribution.

A few precedents on that have already been established. One example would be last year's court battle between Jon Newton (p2pnet.net) and Wayne Crookes, who was trying to say Jon was guilty of defamation (about Crookes) by merely providing links to other sites. The Supreme Court wouldn't hear it, smacked Crookes down, and passed a few judgements that pretty much dismissed any thoughts of holding hyperlinkers liable for anything.

As far as I'm concerned, Isohunt isn't guilty of any wrongdoing. Isohunt, and others are being victimized by 2 things:

1) an out-of-control American corporatocracy, which is obviously in the process of forming a totalitarian police state.

2) a spineless Canadian government, being led by psychopath who belives he's going to profit from kissing the fascist ass of that evolving US corporate police state.
July 03, 2012

Devil's Advocate said:

WTF?
In the above, #2 should read "...led by a psychopath who believes..."

I gotta slow down when I type. :(
July 03, 2012

monster beats pro said:

monster beats pro
http://www.beatsbydresite.org/
October 18, 2012

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