Most people — hopefully — understand that copying material from another’s website and pasting it into your own is probably copyright infringement. While there may be defenses, such as fair use, there is a safer way to go — but an uncertain nuance to that safer way. Instead of copying someone else’s material, the best solution is to include in your own site a link to the website, or specific URL, where the other material is located. This applies to articles, photographs, music and any other type of content. The actual content is subject to copyright; a link has no protectable features. The nuance is when those hesitant about sending a reader to a different website decide to embed or frame the third-party material within their own website. It is unclear whether this available technology — which allows a user to see one entity’s content while on a different entity’s website — creates copyright infringement. This method of embedding or framing has been accepted by some Federal courts as not infringing, because the content remains on the server of the original website and is not copied to the server of the newer website. However, a different court more recently found that this “server rule” may not shield this type of linking from copyright infringement. Until the various appellate courts are in alignment, it is safer to provide a link to a third party’s site, and not embed or frame the material. It certainly is prudent not to use someone else’s content on your own website. It is even safer to “deep link” using the URL where you know the material originated so as not to contribute to someone accessing infringing material.
Ned T. Himmelrich
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