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Is linking to copyright infringing material illegal? This question, posed on the video site [QuickSilverScreen][1], caught my eye a few weeks ago and I've been following the story of QuickSilverScreen ever since.
It turns out the answer is mainly yes, it is illegal in the United States to knowingly link to copyright infringing materials. There's an excellent and very thorough rundown of all the relevant legal precedents on [Webtvwire][2] that I encourage you to read.
But first some background; QuickSilverScreen is a link sharing site almost solely dedicated to helping its visitors find copyright infringing material. Because QuickSilverScreen itself doesn't *host* any of the video clips you might think that the site is perfectly legal.
But you would be wrong. In fact, under the Digital Millennium Copyright Act (DMCA), even linking to copyright infringing material is illegal. The DMCA does provide certain "safe harbor" exemptions however, but QuickSilverScreen does not qualify for them. In order to obtain so-called "safe harbor" an online service provider must, according to the [docs on Wikipedia][3]:
>* not have actual knowledge that the material or an activity using the material on the system or network is infringing (512(c)(1)(A)(1)).
* not be aware of facts or circumstances from which infringing activity is apparent (512(c)(1)(A)(2)).
* upon obtaining such knowledge or awareness, must act expeditiously to remove, or disable access to, the material. (512(c)(1)(A)(2) and 512(c)(1)(C))
* not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity (512(c)(1)(B)).
There are several more requirements but the above is sufficient to illustrate why QuickSilverScreen didn't stand a chance in court. The site is fully aware that the content it links to is infringing and that, at least in the U.S., puts them in violation of the law.
What's unclear legally is how far this trail of linking goes; for instance, I just linked to QuickSilverScreen, does that make me liable? If you link to this article which links to QuickSilverScreen does that make you liable?
And where does that leave blogs and other personal sites that might occasionally link to a copyright infringing video? According to Dr. Stephan Ott, a [lawyer interviewed on Webtvwire][4], "if you know that a video is pirated and you link to it, it is very likely that courts will see the link as unlawful."
So what happened to QuickSilverScreen? At first the site rather cleverly converted its links to text boxes, but in the end QuickSilverScreen has done what all questionably legal sites seem to do -- moved offshore beyond the reaches of the DMCA and Fox lawyers.
[1]: http://quicksilverscreen.com/
[2]: http://www.webtvwire.com/linking-to-infringing-content-is-probably-illegal-in-the-us/ "Webtvwire on QuickSilverScreen"
[3]: http://en.wikipedia.org/wiki/OCILLA#Requirements_to_obtain_the_safe_harbor "Wikipedia entry of DMCA Safe Harbor"
[4]: http://www.webtvwire.com/linking-law-expert-dr-stephan-ott-talks-about-linking-to-pirated-video/ "Webtvwire"
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