Most companies by now have made their footprint in social media, including on leading platforms such as Facebook and Twitter.   With 500 million Tweets being sent per day, companies need to get creative to come up with enough content to engage their consumers.  One popular technique is to send Tweets that contain links to third-party content, along with some discussion relating the content to the company’s own products or services.  This has become such a common practice that some may not consider whether there could be any liability associated with this practice, and how they may best avoid it.

We recently reported on a much anticipated ruling regarding when hyperlinking is lawful in Europe.  In this post we will discuss when you may see copyright or trademark liability for this activity under U.S. law, and best practices for avoiding such liability.  Be sure to read to the end of this post for our “top ten” guidelines!

First, the good news.  Linking  per se is generally not actionable under U.S. copyright or trademark law (phew!).  In fact, most websites encourage linking.  Many news outlets and other content providers use technology on their sites that allows users to share the content on Twitter, Facebook or other platforms by simply clicking an icon.  Also, content providers may favor linking because the more links that are established to their site, the higher their site will be ranked in response to Internet searches.  Finally, the content providers are getting new traffic to their website that they may not have without the links, which most sites would welcome.

However, there are a few special cases where linking practices may be tantamount to infringement.  In general, the areas where you may see liability for linking under copyright law is when a link is presented in a way that encourages access to infringing material, or where the link connects to a live performance or other material streamed to the public. Liability for linking under trademark law may be present where a link suggests false sponsorship or endorsement or would otherwise be viewed as likely to cause confusion.  Linking also may potentially be restricted by contract, such as in a website’s terms of use.

One specific example of how liability may potentially arise is if a company uses a protected work (such as a design or company logo) as an icon, or a trademark or service mark found on the linked site, as the underlined text in the link.  However, simply using a tradename as underlined text in a link (such as the name of the news outlet from which the linked content was published) should be deemed a fair use.

As another example, framing and in-line linking (i.e. where the linked content appears within a webpage hosted by the company creating the link) has a greater potential of creating confusion, because the linked content can be distorted or displayed without proper attribution.  Also, the URL at the top of the page would be the URL for the company’s webpage, rather than for the content owner. Companies should ensure they are linking directly to genuine content, rather than linking to the content framed in their own webpage (or content appearing on any third-party infringing page, for that matter).

Even where liability potentially may be shown, several defenses may be available, include implied licensing, fair use, de minimis infringement and the DMCA safe harbors. Under implied license, one could argue that by placing a publicly accessible site on the Internet, a content provider is granting an implied license to others to link to it – after all, the Internet is a series of interconnected links.  Of course, implied licenses can be revoked, so if a content provider sends a cease and desist letter regarding an unwanted link, it would be prudent to remove the link rather than to rely on one of these other defenses.

Because linking potentially could be restricted by contract, it would be prudent to review the content owner’s website terms of use to make sure linking is not prohibited.  Even when a content provider does allow linking, its website terms of use may contain limitations, which are usually common-sense if following our guidelines below.  For example, the New York Times has a specific policy that encourages linking, but also prohibits the use of frames, the use of the logo, mirroring content on a company’s own site, and emailing links to a paid subscriber list, when doing so.  As a rule of thumb, when a website’s terms are silent on linking, it can usually be inferred that the site owner has no objection to links.

To assist companies in steering clear of liability when linking to third-party content, we developed the following “top ten” guidelines:

1. Use your own words when describing third-party content in the Tweet or link, to avoid direct infringement.
2. Only link to genuine content; do not link to infringing material (i.e. unauthorized copies of the content on infringing sites).
3. Do not link to streaming content/live performances.
4. Only link to publicly available content (i.e. do not allow users to bypass a registration process or paid subscriptions, etc.).
5. Do not use language in the tweet that would imply false sponsorship or association (i.e. do not tweet “The New York Times just posted an article that endorses [your company’s product]” if the article really only discussed products of that type in general).
6. Do not include service marks (other than trade names) as the text of the link.
7. Link to genuine content on the authorized website, rather than calling up a cached site or mirroring the content on your own company’s website.
8. Do not use frames or in-line links.
9. If you receive a cease and desist letter for posting a link, remove the link.
10. Review the terms of the linked site to determine if they prohibit or restrict linking.