Can sharing a hyperlink be considered copyright infringement? TBD – Intellectual Property

On March 11, 2022, the Supreme Court of British Columbia released its decision in
Proctorio, Incorporated v Linkletter2022 BCSC 400 (CanLII), and some might be misled into thinking that the proposition that you need permission from copyright owners to share a hyperlink to their content is authoritative.

What happened here? Mr. Linkletter, a learning technology specialist employed at UBC, tweeted a screenshot to a password-protected webpage and hyperlinks to unlisted videos posted on Proctorio’s YouTube channel. Unlisted videos are only accessible to people who have a link to that video. They cannot be found by searching YouTube or a search engine. they are therefore, to a certain extent, private. Proctorio sued Mr. Linkletter, claiming, among other things, that he infringed Proctorio’s copyright by tweeting the hyperlinks. The Court agreed that, in this particular case, Proctorio’s claim is legally defensible and that there are grounds to believe that Mr. Linkletter had no defense against them.

This article will not discuss copyright law and the centrality of hyperlinks to the practical operation and usefulness of the Internet. Why not? Because that’s not what the Court did either.

Why? Because the decision is not, on the merits, about copyright infringement or any of the other claims against Mr. Linkletter. The decision is about something larger: whether Proctorio should even be allowed to pursue his lawsuit against Mr. Linkletter because it is in fact a SLAPP – a strategic lawsuit against public participation (in d’ other words, a lawsuit to stop people from publicly criticizing Proctorio).

As in many other provinces, there is a law in British Columbia called Public Participation Protection Act which allows anyone who is sued as a result of expression on a matter of public interest to request that the action be dismissed because the suit is in fact a SLAPP. An anti-gag request requires the Court to determine whether the claims presented have “substantial merit”, whether the person being sued has a “good defence”, and whether the damages suffered (here, by Proctorio) are serious enough to outweigh the public interest in the defendant’s public expression (here, Mr. Linkletter).

However, to emphasize, the Court is not supposed to fullyexamine each allegation. Rather, it must make “an assessment of the likelihood of an allegation succeeding” and determine whether it is “legally defensible”. This makes sense, because requiring a full review on the merits would subvert the purpose of the anti-SLAPP process by, in effect, requiring a trial before trial (thus dramatically increasing the time, effort, and cost of litigation).

So what the Court did was, in my view, just the bare minimum. He accepted, without discussion, that sharing a hyperlink is one of the exclusive rights of a copyright owner under Article 3 of the copyright law (this is probably what is generally called the right of making available). Next, the Court considered Mr. Linkletter’s defense by briefly reviewing and distinguishing between two Canadian cases (Crookes versus Newton2011 SCC 47 and Warman v. Fournier2012 FC 803), and apparently relied on a European authority (which has no binding power in Canada) for the proposition that,

“Unauthorized sharing of hyperlinks may constitute copyright infringement if it has the effect of causing copyrighted content otherwise accessible only to a select segment of the public to be shared with a wider “new public”: case C-466/12, Svensson vs. Retriever Sverige AB, 2014 ECDR 9 (Court of Justice of the EU); case C-160/15, GS Media BV v Sanoma Media Netherlands BV2016 ECDR 25 (Court of Justice of the EU).”

Based on this, the Court concluded that “there is reason to believe that Mr. Linkletter has no valid defense to copyright infringement based on the fact that he merely shared a link rather than the copyrighted material itself”.

To emphasize, having “grounds to believe” is a much lower bar than a decision that Proctorio at a copyright claim, and that r It will not be valid defenses if the case is fully considered at trial.

The Court also considered the fair use defense and determined that Mr. Linkletter’s fair use argument “shows no real prospect of success.” Even after careful consideration on the merits, trial and appellate courts rarely agree on the application of fair use in a particular case, so this particular finding carries minimal precedent weight.

Ultimately, Proctorio’s request to dismiss Proctorio’s claim was not granted and the litigation was therefore allowed to proceed. If the parties proceed with the lawsuit, we can expect written reasons from the court and a full review of the claim of copyright infringement and the defenses thereto. Until then, this case is just a butt that shares Unlistedcontent (such as unlisted YouTube videos) may result in
questionable claims of copyright infringement.

Note that, as the claim against Mr. Linkletter shows, there are other arguments that can be made against someone who shares content online that is not listed, or is only accessible under terms of use/service that may contain privacy terms, for example, they can sue directly for breach of those terms or, as here, sue in tort for breach of trust.

Stay tuned (and feel free to share this article freely!)

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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