A controversy over hyperlinking, a practice taken for granted? 2021-4-15

Can copyright owners ban hyperlinking for "commercial purposes"? From what I can find, it seems complicated and unsettled.

I've noticed at least one channel presenting new classical music on YouTube saying that embedding or hyperlinking is allowed only for 'non-commercial purposes'.

Temporarily, I hope, I've removed Adsense from 'Bill's Drama and Music News and Reviews' on Blogger (check the Profile) because I wanted to present the piece (today), and I believe there could be other channels with similar instructions that I could have missed, mainly with respect to music performances, especially with sheet music shown.

The use of Adsense, even though its revenue is low, would technical make the blog 'commercial' because an ad will appear on any post according to the layout of the blog internally.  It is possible to place Amazon ads inside specific blog posts (and many other ads where advertisers provide embed code) where there is no such concern about a link.

But technically, the official word (EFF, 2007) has still always been that hyperlinks are like footnotes in term papers, and cannot infringe.  With embeds that is usually true, but there is an important unsettled case in New York State (February 17, 2018).  One of the major cases is Perfect 10 v. Google

Back around 1999 or so there was indeed some controversy, but there was a case in the early 2000's that is thought to have instantiated the “server rule”.  It is based on where the actual copyrighted material is stored. 

There have been objections to this understanding of things.  Some publications, in the past, did not want external sites to link directly into them because they their business models would be disrupted, as visitors would not see many of their ads.  Today, the only major site that tries to enforce this is Fox News, which throws a 403 Forbidden if a Blog tries to reference a deep article directly (you can get around it with Twitter).  Most newspaper and magazine sites now have paywalls to deal with the growing business model problem, and it would help consumers if these paywalls could be bundled and work more automatically. 

YouTube used to allow content creators to disable embedding, but they took that away (I don’t know why [Note: as of sometime befor 2022 it was restored, because it can be done now]).  Wikipedia allows embedding of most of its photos, but does not provide embedding for photos (a small minority) where there is no CCSA license. 

There are news aggregation sites like Smart News, which reproduce entire articles on their servers, but only because they have contracts with specific publications that allow them to do so (especially big with coronavirus stories).  But bloggers (like me) simply 'aggregate' by giving you links and letting the reader look up the actual article for themselves.  I’ve done this for 23 years without complaint.

One can wonder if things would change suddenly with the CASE Act, but the Copyright Claims office should not change the rules of copyright as have been established by the courts.  I would say it should not.

Many television stations, which generally do not use paywalls or interfere with use, have disclaimer warnings “this story may not be rewritten or redistributed”.  But news facts themselves may not be copyrighted, only the expression of them.

So this routes back to the question, can a video owner forbid linking by another site with ads on the post or for the entire blog?  Generally copyright law would not address this question.  A musician, who makes their living on contracts for compositions (called “commissions”, not the usual use of the word) might be outgunned by a blogger who somehow makes a lot of money from ads embedding the music (in whole videos, not just the soundtracks, which would require a license).  That doesn't sound illegal.  It just sounds like the musician needs to understand marketing to advertisers better.  Ethically, and practically, I see the point.  

Another wrinkle in the mix of ideas is that in the future platforms and even hosts are likely to discourage content creation that is not 'commercially viable'.  YouTube already hinted at this with a TOS change associated with COPPA and the end of 2019, barely pre-pandemic.

A video from the UK, without many visitors, gets into these points and I'll have to look at it.  The video also discusses Napster (before it was sued), and even now if it didn’t host anything, how was Sean Fanning infringing?  P2P introduces its own complications into copyright law application;  see this article, and Wikipedia.

The video post says that owners or publishers have the right (though copyright ) to determine how their content is communicated to the public.  But copyright law in the US is not set up to do that for them.

In Europe, they’ve tried to implement a “link tax” as part of the EU Copyright Directive, and some countries like Spain had tried hard on their own before (especially against Google searches). But in the EU there is particular concern that new sites, video channels and blogs are destroying jobs in traditional legacy media. It sounds like protectionism, not real copyright.

This questions sounds more open than we thought, still.