Hyperlinking As A Trafficking Offense Under The Copyright Act

Hyperlinking, or providing a clickable link from one Web site to another, is not likely to subject a company to liability in the usual case. However, in the groundbreaking case of Universal City Studios v. Corley, the act of hyperlinking was enjoined as a violation of the anti-trafficking provisions of the Digital Millenium Copyright Act (DMCA). In Corley, a Web site publisher was permanently enjoined from posting a DVD descrambling code known as DeCSS on its Web site, as well as from knowingly linking to other sites where the code could be found. The court ruled that the descrambling code is "speech" entitled to protection under the First Amendment. However, it also found that the restrictions against posting the code on the Web -- and against knowingly hyperlinking to other sites that do -- were content neutral and the least restrictive means for achieving the government purpose of preventing trafficking in technologies that circumvent copyright protecting systems. Although the case now stands as a precedent that hyperlinking, in and of itself, can be illegal under the copyright code, First Amendment advocates who would argue that the Corley case is limited to its facts, and would not apply in situations in which the hyperlinks do not take Internet users to Web sites that publish descrambling codes or other technologies that circumvent copyright protection systems.

The following questions have been addressed in this article:

Can an Internet business be held liable for hyperlinking to sites that include DeCSS code -- or other technologies that circumvent copyright-protection, if the business is not aware that the trafficking technology is available on the linked-to site?
What implications does the Corley case have for electronic publishers and other e-businesses that hyperlink to sites that contain other types of illegal materials, such as obscene materials?
Is the Corley opinion binding throughout the United States?

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