August 24, 2021
The U.S. District Court for the Southern District of New York has rejected the argument that embedding a link to a video does not “display” that video within the meaning of the Copyright Act. Nicklen v. Sinclair Broad. Grp., Inc., No. 20-CV-10300 (JSR), 2021 U.S. Dist. LEXIS 142768 (S.D.N.Y. July 30, 2021). In ruling on a motion to dismiss, the court held that the exclusive right of the copyright owner to “display” his work should be interpreted broadly so that the display right is not rendered “merely a subset of the reproduction right.” Id. at *13.
Under the auspices of the legal theory that one must make a “copy” to be liable for copyright infringement, the phenomenon of “hotlinking” has grown exponentially as websites have relied on this “legal loophole” that ostensibly relieves them of responsibility for what would otherwise constitute copyright infringement. “Hotlinking” is the process by which a website links to an image (for example) that is hosted elsewhere on an external server. The image is embedding into the website, but since the hotlink is not “displaying” an actual image file, but rather is directing to a separate file on a separate server, the website never actually makes a copy of the image file. Therefore, hotlinking has been seen by some as a technical loophole that allowed for copyright infringement without the liability.
Those relying on this defense have pointed to the “server rule” promulgated by the U.S. Circuit Court of Appeals for the Ninth Circuit. Id. at *12 (“Because the image remains on a third-party’s server and is not fixed in the memory of the infringer’s computer, therefore, under the ‘server rule,’ embedding is not display.”). The Nicklen court rejected the “server rule” by holding that the exclusive right to display a work “is concerned not with how a work is shown, but that a work is shown.” Id. at *11 (emphasis in original).
This hotlinking/embedded link defense always seemed at to be at odds with the intent of the Copyright Act, but was yet another example of copyright law not keeping pace with technological advances that allowed infringers to ostensibly escape liability for what would certainly seem to be a violation of the exclusive rights of the copyright owner.
RegitzMauck agrees with the reasoning of the Nicklen court. If you are the victim of hotlinking, do not hesitate to contact us.
Mike Regitz focuses his practice on intellectual property and technology disputes, counseling, and licensing.
RegitzMauck PLLC is an intellectual property boutique based in Dallas, Texas. The firm focuses on providing value-based legal services to cost-conscious clients seeking high quality legal representation in intellectual property, cybersecurity, and data privacy matters and disputes.