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63 J. Broad. & Elec. Media 160 (2019)
Linking to Online Content Becomes Copyright Infringement: Lessons from Aereo

handle is hein.journals/jbem63 and id is 162 raw text is: BEA Routledge educg ni,, omof- wdis Taylor & Francis Group Linking to Online Content Becomes Copyright Infringement: Lessons from Aereo Kimberlianne Podlas Although many Internet users presume linking to online content is permissi- ble, copyright owners have long complained that it constitutes copyright infringement. The Supreme Court recently resolved this issue in ABC v. Aereo, holding that pursuant to the Copyright Act's Transmit Clause, an Internet transmission of a copyrighted work is a performance of it. Therefore, inasmuch as transmission occurs by inserting and clicking on a link, the link performs the copyrighted work, and may infringe. This article analyzes linking as a species of copyright infringement, and details which types of links infringe, who faces liability, and what defenses exist. Every day Internet users click and insert links to online content, but few of them contemplate the legal implications of their actions. Indeed, links are so ubiquitous that most people presume linking is permissible, especially when in the context of information-sharing or non-commercial activity (Healey, 2014). Notwithstanding, owners of the content and Web sites have long claimed that such content linking could violate their rights. They complain that linking allows viewers to bypass paywalls (Flava Works, v. myvidster, 2012; Kelly v. Arriba Soft Corp., 2003), enables competitors to misappropriate their work (Gardner, 2010; Sanchez, 2009), and impedes their ability to monetize digital platforms (Park, 2010). Content creators and studios further assert that when these links enable illegal uploading of films and television programs, the links are used as a tool for infringement and can encourage others to infringe as well (Cullins, 2017; Kravets, 2016; Lee, 2012). Although all of these complaints are premised on the notion that linking to copyrighted content somehow infringes on it, until recently, this issue was unresolved. Further compli- cating the matter was the question of who would be liable: those who insert or share links, those who click links, the intermediaries that enable the transmission, or the original uploader of the content (Goldman, 2014). In fact, a majority of linking lawsuits were dismissed, because they failed to identify a sound theory of copyright infringement or proffer a cognizable theory of liability (Podlas, 2014). Kimberlianne Podlas (D, SUNY at Buffalo, School of Law) is a professor and head of the Department of Media Studies, UNC Greensboro. Her research focuses on both media law and the law of emergent media forms. O 2019 Broadcast Education Association fournal of Broadcasting & Electronic Media 63(1), 2019, pp. 160-176 DOI: https://doi.org/10.1080/08838151.2018.1552274 ISN: 0883-8151 print/1550-6878 online 160

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