2000 B.C. Intell. Prop. & Tech. F. 040401
Internet Ruling: Hypertext Linking does not violate Copyright
On March 27, 2000 federal Judge Harry L. Hupp for the Central District of California issued a first ruling in favor of Tickets.com in the case of Ticketmaster Corp. v. Tickets.com (99-7654) involving alleged copyright infringement for hypertext linking. Tickets.com is an online provider of entertainment, sports and travel tickets and provides hypertext links to Ticketmaster web pages for tickets not available at Tickets.com. Ticketmaster sued Tickets.com claiming such links constituted copyright infringement, among other claims.
In his ruling, Hupp concluded "hypertext linking does not itself involve a violation of the Copyright Act….since no copying is involved." The basis for this conclusion can be seen from the statutory language of the Copyright Act, Title 17 section 106 of the United States Code, describing the exclusive rights of copyright holders, which reads as follows:
"Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:Hupp went on to describe the process of hypertext linking: "The customer is automatically transferred to the particular genuine Web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently."
17 U.S.C. sec. 106.
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. "
Such hypertext linking, therefore, does not involve the reproduction, distribution or preparation of copies or derivative works. Nor does such linking constitute a "…display [of] the copyrighted work publicly…," as the web page called up by the user is the original web page created by the author.
Hupp's ruling, however, applies only to the act of linking from one Web site to another. Hupp let stand Ticketmaster's copyright infringement, unfair competition and false advertising claims against Ticket.com, noting that Ticketmaster alleges actual copying of its interior Web pages in the extraction of factual data by Tickets.com.
W. Thomas Gimple, co-chairman and CEO of Tickets.com, described the ruling as "support[ing] Tickets.com's position that consumers should be free to surf the Web and gain access to information, without unwarranted restriction."
Ticketmaster previously brought a similar suit against Microsoft in 1997. In Ticketmaster Corp. v. Microsoft (97-3055), Ticketmaster accused Microsoft of copyright infringement and trademark dilution through its use of unlicensed hypertext linking. The case was settled out of court.