Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.

This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):

“Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
...
Hyperlinks ... share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”

The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.

In principle, we are unable to see why “framing” as it is often called, should be treated any differently for copyright purposes from hyperlinking.

[...]

In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.

@joshuatopolsky that was a story we linked out to on huffpost to drive traffic/readers to The Verge, which it looks like it did 1/2

— Bianca Bosker (@bbosker) January 23, 2013

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

The new section, if introduced, would provide the "producer of news materials" the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes," according to an unofficial translation of the German Government's proposals.

Others would be permitted to provide "public access" to the publishers' material unless those providing that access are "commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion". News publishers' right to control the commercial exploitation of their work in this regard would extend for a year after publication. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

• Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
• New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
• Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

As owner of the Content, AOL has the obligation to prevent the improper use of its proprietary material. Before pursuing any additional avenues to remove the Infringing Content, we are demanding that MarylandJuice.com take immediate steps to remove Patch’s image and either 1) display no more than a 1-2 sentence snippet of this Content, with credit explicitly given as well as a link back to the full article available at http://wheatonmd. patch.com/articles/proposed-rule-change-for-accessory-apartments-meets-opposition ; or 2) remove and disable access to all Infringing Content, and agree to never repost or use the Infringing Content or any other AOL Content, absent compliance with the third-party use guidelines identified above.

And seeding HuffPo Chicago is a scheme whereby the publication takes some — in many cases all — of the content from another site, with a link back to the original.

The result is quick and easy traffic for the new Chicago edition, since the publication ends up catching some Google searches for keywords contained in the (Chicago-related) articles it takes. HuffPo already has good Google PageRank, so its own version of the content floats to the top of the results, even though it was not the original source.

HuffPo's justification, at least when the publication was pulling this crap with us, taking the entirety of our RSS feeds, was that the reprinted posts were good promotion, since they included (a totally buried) backlink to the original content on our site.

"a licence is required to link directly to an online article even without uploading any of the content directly onto your own website"

“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,”

"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."

... willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.

1. Okay, let's start with the obvious one: you don't need, have never needed and will never need a license to link to another website. Sorry. It's just ridiculous to even contemplate such a thing -- especially in this day and age.
2. Yes, okay, so we've heard a few stories of sites doing similar things in the past... but they were either wacko sites run by nutty people, or they happened a decade or more ago, before people understood the web. Well, or a government-connected bureaucracy. That this would be a giant retailer in 2012 requiring such a license to link? That's just insane.
3. Note that they have not one, but three separate licenses to link. The other two are much more about if you're using logos or other trademarks, which is only slightly more understandable (though there are plenty of situations under which you wouldn't need a license to use their logo or marks either...). But this highlights the key insanity. If it had just been one license that talked about logo/mark usage, they may have been able to claim that's really all they meant. But here, they've specifically carved out the situation under which no logo/mark is being used. In other words, they've deliberately carved out the situation in which no license would ever be needed.... and then offered up a license for that. That's insane.
4. The only way to send the signed license in is to fax it. Yes. The only way. For a license about internet links. Is to fax it. Fax. That's insane.
5. Lowe's insists that it can terminate this license for any reason. Except... um... such a license is not valid and anyone can link to them. So, terminate away.
6. When Anderson contacted Lowe's PR about this, rather than taking down the bogus license or just running and hiding in shame for being digitally clueless, the company stood by the license:

   "Managing link agreements is part of protecting our brand," is the polite reply I received. "The process we have in place to handle links to lowes.com is a business decision."

   Let's be clear about this: nothing in that statement makes one iota of sense. It's pure insanity. Managing link agreements does nothing to protect your brand, because it's licensing something that doesn't require a license because you have no control over it. At all. In fact, it's the opposite of protecting your brand, because it makes your brand, and your entire company, look clueless. Also, it may have been a "business decision," but it's one that makes no sense, carries no legal weight, and makes the company seem entirely ridiculous.

“I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,” said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was “particularly interested in learning how many secret dockets exist for copyright cases. There doesn’t seem to be an obvious precedent or explanation for that.”

Pickups will now include a parenthetical bit.ly link to the original story, in addition to the credit. So in the fireworks story, you might see: “According to the Boston Globe report (http://bit.ly/pDHZ6h)...” The change will be most noticeable on state wires, where pickups are common.

With that in mind, I bring you another blogging faux pas, courtesy of the Copyright Alliance blog. In a post titled "Setting the Record Straight on PROTECT IP," Sandra Aistars takes aim at an article posted elsewhere on the web:

Since the introduction of the PROTECT IP Act we frequently see articles and blog posts that severely mischaracterize and make false assertions about the legislation. For example, today we noticed a piece that claimed that the PROTECT IP bill would be a detriment to entrepreneurship. As an organization that represents individual artists and creators, who are themselves entrepreneurs and small businesses, we share the author's concern for entrepreneurship and economic growth. The creative sector in the United States, which is comprised largely of people you would consider the copyright owner next door, accounts for 11.1 million jobs across the country. Unfortunately his portrayal of the PROTECT IP bill is factually inaccurate in virtually every respect.

This is quoted verbatim. If you haven't noticed by now, there are no links to the original article or any mention of who wrote it. Considering this lack of information, Aistars could be talking about something her neighbor wrote and shoved under her door for all we know. In this day and age, I don't see how you can expect to tackle someone else's arguments without at least mentioning their last name.

It's a shame, too. Aistar's post does a fairly good job laying out her disagreements (even if I don't agree with all of her disagreements) in a very easy-to-follow point-by-point argument. (Although, she does spend more time than is needed pounding home the point about the bill addressing only sites dedicated to infringement, which according to the beneficiaries of this law include archive.org, Vimeo, Soundcloud and 50 Cent's personal website.) The problem is, no one knows who she's arguing with and even worse, nobody can verify whether this mystery person made the claims she's attributing to them.

It would seem that linking to the original article would be second nature... unless you're trying to avoid people actually reading what you're arguing with.

If you're confident in your argument, why wouldn't you link to the article? Techdirt disagrees with pretty much everything and yet, every post links to the source of disagreement. But the more Aistar calls out "the author" as a nameless, linkless being, the less inclined most people are to believe that her piece is even-handed.

If you haven't Googled up the solution to this "mystery writer," I'll go ahead and provide you with the link that the Copyright Alliance apparently couldn't get coded in by presstime:

"Blacklisting Entrepreneurs: PROTECT IP Could Harm Web Startups" by Paul Kedrosky 

Of course, it's no use rushing to the Copyright Alliance blog to ask why this was handled this way. The comments are closed and pingbacks have been politely asked to leave. Ironically enough, Copyright Alliance did take the opportunity to exercise their one-way rights and leave a comment on Kedrosky's post, which takes this whole situation past "obtuse" and into "egregious." Since I told myself that I'd be very even-handed in dealing with this bizarre breach of internet etiquette, I'm ending this post now and opening it up for discussion. Have at it.

“Particularly troubling is their refusal to explain how linking is different than free speech. Given that hyperlinks in many ways form the foundation of the Internet, efforts to go after one site for linking to another site – which the Administration is currently doing and the Protect IP Act would expand on – threaten to do much more than protect IP. There are many actions that we can all agree the Administration can and should be taking to crack down on counterfeiting of U.S. goods and the illegal sale of U.S. IP products that don’t involve advancing novel and unsupportable theories like holding sites liable for linking.”

• Patrick Leahy
• Orrin Hatch
• Chuck Grassley
• Charles Schumer
• Dianne Feinstein
• Sheldon Whitehouse
• Lindsey Graham
• Herb Kohl
• Chris Coons
• Richard Blumenthal
• Al Franken <-- Updated to include, missed him on the first pass

• Amy Klobuchar
• John Cornyn
• Chris Coons, who has the distinction of sponsoring both dreadful bills