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Hyperlinking As Infringement

By Frederick Whitmer

Can hyperlinks on one Web site that link to another site where copyrighted materials are displayed constitute copyright infringement? Although at least two earlier decisions, Ticketmaster Corp. Tickets.com, Inc., 2000 WL 525390 (C.D. Cal. 2000) and Bernstein v. J.C. Penney, Inc., 1998 WL 906644 (C.D. Cal. 1998), have declined to recognize the potential of copyright infringement from the mere use of such hyperlinks, the recent Indiana federal district court case, Batesville Services, Inc v. Funeral Depot, Inc., Case No. 1:02-cv-1011-DFH-TAB (in a decision labeled “not intended for publication in print,” Nov. 10, 2004), concluded that a defendant's use of hyperlinks on a Web site that link to copyrighted material on another Web site could constitute copyright infringement.

Although the court's decision in Batesville granted plaintiffs' motion for summary judgment, striking a variety of the defendant's defenses, including fair use, the reasoning of that part of the court's decision, which left for trial the ultimate merits of the copyright infringement claims, is the focus of this article.

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