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IP: Is It Legal to Link?

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This is an odd question: is linking legal? I mean, that's stupid. It's like asking whether it's legal for a duck to fly; that's what ducks do. That's what the World Wide Web is - hyperlinked text. That was Tim Berners-Lee's original vision, to create a global network of all this information all over the place linked together in an assortment of ways creating a World Wide Web of information. If you didn't want someone to link to you, then don’t put your stuff up on the Web, right? It's hard to imagine a more preposterous question - but as attorneys, as a species, generally don't have a sense of humor that instinctively permits them to identify the preposterous, legal conflicts over linking have brewed.

The question, more correctly put, is whether it is permissible to hyperlink to a third party's content without that third party's consent. Could such behavior constitute copyright infringement, unfair competition, trademark dilution, or other possible causes of action? And why would anyone care?

As with all things irrational, the explanation is of course economics. As the Web went commercial, website owners went to great lengths to attract eyeballs - and in order to pay for those great lengths, they had to sell advertising. During the Internet boom, advertisers were tossing money all about, and the more of those eyeballs that you could attract, the more of that money you could capture. If someone created links that bypassed all those advertisements, then that money would potentially bypass you.

Note a fascinating progression of imagery of the Internet. The Internet and the Web are originally seen as this new frontier of freedom, openness, and cooperation. The Web is designed with the assumption that people would want to link to each other. Gradually, this Web becomes a place known as Cyberspace where people could enter and come and go. The problem was, that if Cyberspace is a place, than this place that I built is my place and my property. And just like any other real estate property that I own, the presumption is that I can exclude you from my place. The norm for real estate is that you enter my place only with my permission and if I withhold that permission, then you trespass. Suddenly, cyberspace as place has flipped from a culture where linking and openness is the norm, to a culture where this place is mine and I can exclude you, forbidding you from linking to me or setting conditions on you while you are in my place (those imperceptibly small "policy of use" links of the bottom of homepages that tell you all of the things that you agree or do not agree to upon willfully enter my place). (This observation about the evolution of cyberspace was set forth by Prof. Dan Hunter and Prof. Mark Lemley. See Dan Hunter, Cyberspace as Place, TPRC 2002; Mark Lemley, Place and Cyberspace, TPRC 2002).

Linking:

The premise that the Web by its nature is hyperlinking has not eluded the judiciary. Starting with the preliminary straight forward scenario of linking from one site to another, the courts that have addressed this scenario have concluded that there is no copyright cause of action upon which one can complain. Note however that, to the degree that parties have advanced cases complaining about hyperlinks, these cases have been advanced primarily on trademark and not copyright causes of action.

In 2008, the Associated Press apparently sent DMCA Notice and Takedown notices to several blogs, complaining about links to AP headlines with brief excerpts from the articles. The Bloggers and EFF responded that the use of AP headlines and text is consistent with Fair Use. This is note the first time that AP has objected to the use of its material by a new medium. Thomas White reports that in 1922, in what was known as the Press-Radio Wars, the Associated Press, believing that radio was a threat to its newspaper new business, attempted to restrict the use of its newspaper stories by radio stations. [Thomas White, US Early Radio History (The Electric Telegraph 1860-1914)]

Linking to Infringing or Illegal Content:

The next scenario is somewhat different. This is not an objection by a plaintiff to a link from the defendant’s site to plaintiff's content; this is an objection by a plaintiff to the defendant linking to a third party’s content where that third party’s content infringes plaintiff's copyright. If the defendant knows that the content is infringing, the defendant may be in a bit of trouble. See [Intellectual Reserve (knowingly linking to third party website that had infringing copies of church's copyrighted handbook resulted in liability for contributory copyright infringement)] [Seattle Times (linking to illegal gambling as grounds for liability)] [EFF (at issue is a prohibition against linking to documents with trade secrets)] [Cooper Australia (linking to illegal MP3 copies grounds for liability)].

Note that the DMCA has a procedure where a linking website can be immune from liability where (1) it did not know that the linked to website had infringing content and (2) where the linking website promptly removes the link to the linked to website upon proper notification pursuant to the DMCA.

Links however create a chain of connections from hither to thither. What about a link to a link to a link to infringing content? This type of problem was considered in Bernstein v. J.C. Penny, 50 U.S.P.Q. 2d 1063 (CD Cal. 1998). J.C. Penny, in marketing perfume, linked to a third party site that in turn linked to other sites that included infringing copies of plaintiff's photographs. The evidence indicated that J.C. Penny was unaware of the potentially infringing nature of the linked to link. The photographer sued J.C. Penny for the link. The Court dismissed the photographer's claim concluding that there is no liability for a link to a link.

(1) a company whose product is merely displayed on another entity's website cannot be held liable for any infringement by the author of that website; (2) linking cannot constitute direct infringement because the computer server of the linking web-site does not copy or otherwise process the content of the linked-to site; and (3) multiple liking cannot constitute contributory infringement because (a) Internet users viewing of the material at issue is not infringing and thus there was no direct infringement in the United States to which [the defendant] could contribute, (b) linking 'is capable of substantial no-infringing uses' and thus cannot support a claim for contributory infringement and (c) the Court cannot infer from the facts alleged that [the defendant] know the photos has been posted to [the-infringing-site] and multiple linking does not constitute substantial participation in any infringement where the linking website does not mention the fact that Internet users could, by following the links, find infringing material on another website.

Bernstein v. J.C. Penny, 50 U.S.P.Q. 2d 1063 (CD Cal. 1998).

The DMCA also says that technology that circumvents the protections of copyrights is bad. Distributing that technology on one's own website is likewise bad. So what if I link to a third party website where the technology is made available; I am not distributing the stuff - I am merely linking to someone else's website.

It's a nice trick but it still does not satisfy the court. In Universal City Studios, Inc. v. Reimerdes, defendant had posted to his website a copy of DeCSS, a program that circumvented the technological protection of DVDs. The Court issued an injunction ordering defendant to take down the program from the site. The defendant thought, I can beat that court order, and while he complied and took down the program, he also added a link to the program at a third party site. The Court ruled that defendant violated the DMCA by making the technology available both where he posted the content and also where he facilitated its availability by linking to it. Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000). Recognizing, however, the tension of criminalizing linking, the court sought to set forth clear criteria for when the act is problematic.

Accordingly, there may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.

Deep Linking:

A bit more troubling are "deep links." This is the case where, in the true spirit of Internet volunteerism, site A creates links deep into site B, perhaps better organizing the content on site B or aggregating that content with other content or simply bypassing a series of slow loading, advertisement ridden pages on site B.

The classic deep linking conflict is Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-07654 (CD Calif. Mar. 27, 2000). In this case Tickets.com provided deep links to pages on the Ticketmasters.com website, assisting people in their ability to acquire tickets. Ticketmaster.com would have preferred that people come through their front door, and not through some side entrance, so much so that they sued Tickets.com. But Tickets.com provided only a hyperlink and there was a full disclosure that users were going to a third party website and would no longer be on tickets.com. Thus there was no confusion about whose services were being used. The Court stated

The customer is automatically transferred to the particular genuine webpage of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.

The Court concluded in this situation that deep linking in and of itself did not constitute copyright infringement. [Tickets at 1345]

Ticketmaster was also involved in a similar dispute with Microsoft. [Microsoft] When linking agreement negotiations failed, Microsoft's Sidewalk went ahead and deep linked to Ticketmaster.com anyway. Ticketmaster sued. The case was resolved by settlement with the apparent agreement that Microsoft would desist the deep linking and would link only to Ticketmaster's homepage (note that as an out of court settlement, this establishes no binding legal precedent).

Framing:

Next in order of consternation is framing. Instead of merely linking to third party content, these controversies involve the use of third party content within the frames of a new website. This creates a host of problems. Does the user know, or would the user be confused about, whose content is being displayed? Is the framing distorting the design of the third party page, such as distorting or obstructing its advertisements? Is the new site gaining an unfair advantage from use of the third party website?

The lead case here is Washington Post v. Total News. TotalNews framed the content of news websites such as the Washington Post, CNN, USAToday, and Time, placing its own content around the major media's content, along with its own banner adds, and, in the process, squeezing and distorting the appearance of the major media's content. There was a danger that the user would be confused concerning whose content was being displayed. The major media websites argued that this was unfair and harmful use of the trademark of the major media sources. Unfortunately, as this case was settled out of court, it did not establish legal precedent. As a result of the settlement, TotalNews ceased framing the content of the plaintiffs. However, reportedly, TotalNews continued to frame content from sources that had not sued it, and it also continued to hyperlink to all sources. See also [Live Nation (redisplaying a webcast)] [Futuredontics].

Thumbnail Images:

There are search engines that crawl the Net searching for images, and then display those images in the highly reduced form of thumbnails. This display of thumbnail images by a search engine has been found be several courts to be legal fair use of the images. See Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 (CD Ca Dec. 1999) (Defendant operated a visual search engine which crawled the Internet gathering images and producing thumbnail picture results in response to searches. Plaintiff was a photographer who ran a website displaying some of his own photographs. When those photographs were captured in defendant's search engine, plaintiff sued. The court held that the search engine, which displayed thumbnail images of material collected, constituted fair use.)

The actual display of the images, however, may not be.

These variety of cases demonstrate how the application of law can be quite fact specific. Change the facts a bit, and the outcome of the case can alter significantly.

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