Hypothetical Question

"...say you are trying to eek out a living from a small business web site and a competitor links to a copyrighted resource that you've created, enhancing their site at your expense. Should you have the right to decide who exploits your work? Or should the World Wide Web be a free-for-all zone where anyone can link to whatever they please? Elaborate and explain your point of view".

Individuals could not make such a decision as we are ruled by laws. The main form of protection from such an occurance is the Copyright Law.

The main forms of defense are:

Reproduction Right:

A link from A to B only contains the URL address of B. In creating the link, the author of A has not reproduced any part of B except for B's URL. A URL is a fact, and as such, it is not protected by copyright. One could argue that since the URL for B includes whatever name B's author gives to the document, it contains protected expression. However, short phrases such as titles and names are generally not copyrightable. Thusly, A has not directly infringed B's reproduction right.

Fixed in a tangible medium:

When a user selects a link from A to B, the information contained in B is downloaded into the random-access memory (RAM) and into the cache of the user's computer. When the computer is turned off, all the information in RAM is lost but a copy remains in the cache. The law states that a copy must be fixed in a tangible medium. The courts have held that a document in RAM is a copy. Does this mean the viewer has infringed B's reproduction right? To answer this question one must determine who made the copy that resides in the user's RAM. The author of B placed the document on a server. When a user who is viewing A clicks on (selects) the link to B, the user's Web browser requests the document from B's server. It is B's server that actually generates the "copy" which is sent to the user. Thus it is B, not A, that authorizes the reproduction.

Derivative Right:

The copyright owner's second exclusive right is the right to prepare derivative works, the adaptation right. A derivative work is "a work based upon one or more preexisting works, e.g., translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which [the preexisting] work may be recast, transformed, or adapted. The purpose of the adaptation right is to allow the copyright owner to control more than simply verbatim forms of copying. Generally, to violate the derivative right, the infringing work must copy part of the underlying work. As discussed in the previous section regarding the reproduction right, a link from A to B does not incorporate or copy any portion of B. Thus, a link does not create a derivative work. The linking documents may create a derivative work by creating a "literary >add-on. An add-on modifies an existing work and is used in conjunction with that work. If A contains links to specific sections of B, one could argue that A modifies the way a user views B. In effect, A is creating an abridged version of B. With printed texts, A would need to copy the desired sections of B to be an abridgment and hence a derivative work. But with links on the World Wide Web, A can create an abridged version of B without copying. Thus, the notion is that A is an add-on (i.e., a supplementary work).

Distribution Right:

The copyright owner has the exclusive right to "distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The distribution right allows the copyright owner to sue a distributor of unauthorized copies even if that distributor did not make the copies himself. This has been an especially important right with regard to the Internet, since the person who distributes a document on the World Wide Web does not necessarily make a copy. The Web is much like a telephone service, a person can program a number into speed dial and then call the number to reach a business's answering machine and listen to their outgoing message. B's server is like an answering machine. When B's author places B on the server, it is akin to placing an outgoing message on the answering machine. The URL that designates B's location is the "phone number" used to reach the answering machine. When the author of A creates a link to B, she has essentially put B's phone number (the URL) into a speed dial memory. When the user selects the link, the user's Web browser "calls" B's server. B's answering machine (the server) then transmits the outgoing message (B) to the user's Web browser for the user to view. The crucial point is that A does not control the distribution of B. If B's author no longer wants to distribute B, she can take the document off the server or restrict access with encryption or passwords. So even if a copy of B has been distributed, the distribution is being made by the author of B, not A. As long as the copyright owner of B has placed it on the server, its distribution is authorized and A cannot be held liable for contributory infringement.

Contributory Infringement:

But suppose the author of A creates a link to a document that has been placed on a server without the copyright owner's authorization. If the author of A has knowledge of the direct infringement, she may be liable for contributory infringement, since her link encourages the further distribution of the document. Of course, documents on the Web are constantly being updated. The author of A might link to B, and later find that B has added unauthorized material. A court would have to decide if it is reasonable to hold the author of A liable in this situation.

Conclusions:

All of this is to the public's benefit. Being able to create or follow a link gives the public the widest possible access to information. The thin copyright offered to A encourages the development of useful links since the author of A can be compensated for her effort. At the same time, the limited nature of the copyright prevents A from creating a monopoly in links and charging exorbitant prices. So if that hypothetical small business owner finds that someone else is pro fiting from her labors B will not have to pay the author of the document A linked to, but the business owner can reconfigure the document so as to require a password. A would then be able to charge B every time someone selects that link. And unless B's competitor is using the same selection and arrangement to organize his own links, B will not be able to prevent him from competing with her. Which means B will have to lower their prices or offer a superior service. Either way, her customers win.

Please note: My ramblings included the assumtion that B does not contain any infringing material of its own. If B does not contain any infringing material, then linking to B does not constitute infringement. However, many Web pages, both personal and professional, do contain infringing material.
A great deal of uncertainty remains as to whether linking to these pages constitutes contributory infringement

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