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35 Berkeley Tech. L.J. 1179 (2020)
The Brewing Battle: Copyright vs. Linking

handle is hein.journals/berktech35 and id is 1224 raw text is: THE BREWING BATTLE: COPYRIGHT VS. LINKING Marta Rochat I. INTRODUCTION Imagine going to an online article, reading a citation of a tweet by President Trump, but not being able to see the tweet embedded within the article itself. Instead, you would have to navigate to Twitter's website to confirm that the tweet actually exists and that it came from the President himself. Next, imagine attempting to find a picture on the internet without Google Images showing an embedded preview of that image.1 These tasks might seem rather unsurmountable without the convenience of previewing embedded images. Those are just two examples of what the internet would be like if copyright law rendered embedding illegal by labeling it an infringement of copyright holders' rights. Over the past few years in the United States and the European Union, judicial decisions and newly-passed laws have threatened free access to information on the World Wide Web by potentially limiting embedding practices. Such limitations may create a slippery slope to prohibiting other types of linking, which would severely curtail the ease of finding information on the internet for an average user. This Note ultimately argues that we should aim to preserve content embedding on the internet in its current form. The negative consequences of stringent copyright protections in linking significantly outweigh their likely positive effects. Banning embedding on the internet will likely skew the incentive-access balance,2 critically inhibit competitive practices on the internet, upset the settled expectations of the web and potentially, in the long term, lead to creation of walled gardens.3 In order to account for the economic incentives currently given by copyright law to copyright holders, this Note also proposes a licensing scheme that would ensure compensation to DOI: https://doi.org/10.15779/Z38B56D54Q © 2020 Marta Rocha. t Marta Sylwia Rocha, J.D. UC Berkeley Law, B.S. UW Madison. 1. According to Ben Ling, then Google's Director of Search Products, in 2010 Google Images had hundreds of millions of users. MG Siegler, Google Image Search: Over 10 Billion Images, 1 Billion Pageiews A Day, TECHCRUNCH (July 20, 2010), https://techcrunch.com/2010/07 /20/google-image-search/. 2. Intellectual property protections assume a balance between incentives created through exclusive rights for authors and access to creative works that will spur further creation of content. See infra Section V.A.2.b). 3. Escaping the Walled Gardens in the Clouds, TECH-FAQ, http://www.tech-faq.com /escaping-the-walled-gardens.html (last visited Feb. 17, 2020).

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