Federal Internet Law & Policy
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IP: Is It Legal to Link? Dont be a FOOL; The Law is Not DIY
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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).


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.

  • Ford Motor Company v. 2600 Enterprises, 177 F.Supp.2d 611 (EDMi Dec. 20, 2001): As much as plaintiff Ford Motor Company might have been displeased by the antics of the defendant, the Court found that registration of the domain name "" which then linked to Ford's Homepage did not create a cause of action for trademark dilution, trademark infringement, or unfair competition. The Court stated, "This court does not believe that Congress intended the [Federal Trademark Dilution Act] to be used by trademark holders as a tool for eliminating Internet links that, in the trademark holder's subjective view, somehow disparage its trademark. Trademark law does not permit Plaintiff to enjoin persons from linking to its homepage simply because it does not like the domain name of other content of the linking webpage."
  • American Civil Liberties Union v. Miller, 977 F.Supp. 1228 (ND Ga. 1997): A Georgia law criminalized the use on the Internet of a trademark or copyrighted symbol that implied permissive use when permission had not in fact been granted. The ACLU challenged this law arguing that it created an ambiguity concerning whether a trademarked term appearing in a hyperlink would constitute a criminal act. The Court overturned the law on constitutional grounds, finding that there is a First Amendment right to descriptively use a trademark in order to refer to the another webpage.
  • 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 provided deep links to pages on the website, assisting people in their ability to acquire tickets. would have preferred that people come through their front door, and not through some side entrance, so much so that they sued But 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 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 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).


    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.

    See also :

  • Gripe Sites: Anti Cybersquatter Protection Act
  • Trademark: Search Engine Keywords
  • MetaTags

  • References


  • Jones Day v No. 08 C 4572 (N.D. Ill.) (Darrah, J.) (pending case 2008)
  • Facts as reported:
  • Jones Day is a Chicago law firm [Anderson]
  • is run out of a Chicago apartment and publishes information based on public record about real estate purchases. It published information about Jones Day partners buying property, linked to Jones Day, and had some pictures of Jones Day attorneys.
  • Litigation [Public Citizen litigation tracker]
  • Jone Day objected to the links and sued. The Complaint.
  • Jones Day has argued that thinks cause a dilution to their trademark and creates a likelihood of confusion.
  • Defendant stipulated to a Temporary Restraining Order
  • Judge Darrah reportedly said to the defendant "Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?" Ah, Judge?!?!? Does the guy with the most money automatically win in the court room?
  • Several public interest groups have filed Amicus Brief including EFF and Public Citizen.
  • Jones Day opposesPDF Amicus Briefs of EFF and Public Citizen (9/23/8)
  • EFF and Public Citizen filed a Reply Memo in Support of Motion for Leave to File Brief as Amici Curiae (Sept. 24, 2008)
  • Nate Anderson, Federal lawsuits take on the humble hyperlink Ars Technica (September 18, 2008)
  • Paul Alan Levy, Trademark Abuse by Jones Day to Suppress Free Speech, Public Citizen's Consumer Justice Project Blog (Sept. 12, 2008) (" A new entry in the contest for "grossest abuse of trademark law to suppress speech the plaintiff doesn't like" comes from Chicago, where the giant law firm Jones Day has sued")
  • Jennifer Reisinger v Sheboygan Mayor Juan Perez (pending case 2008)
  • Facts as reported: Plaintiff linked to the city's police department from her site City sent plaintiff a cease and desist letter. Plaintiff allegeds that some other stuff happened too like significant loss of business, harm to her business, and harrassement. Mayor has withdrawn the cease and desist letter. Plaintiff has sued for violation of First Amendment Rights. Plaintiff has previously been involved in a campaign to recall the Mayor. (What's great is that if you google the Mayor - at least today - the first link that comes up is the Mayor's, and the second is a news article about this lawsuit -- how's that for a politician's legacy
  • John Diedrich, Sheboygan woman files landmark case over Web links, Journal Sentinel Online (Aug. 23, 2008)
  • Nate Anderson, Federal lawsuits take on the humble hyperlink Ars Technica (September 18, 2008)
  • Live Nation Motor Sports, Inc v Davis, No 3:06-CV-276-L (NDTx Dec. 12, 2006) (granting plaintiff's motion for a preliminary injunction where plaintiff webcasts supercross racing events on its website and it is unclear whether defendant displayed the webcast on his website, or merely linked to plaintiff's website. The court found that defendant was likely violating plaintiff's copyright and therefore enjoined him from linking to or displaying plaintiff's webcasts) - note that this is merely a preliminary injunction where the court has found that these things are likely - the court has not made a factual determination as to whether defendant merely linked or in fact displayed the webcasts - and the court made no effort at this point to distinguish this case from precedent that holds that mere linking is not actionable.
  • Declan, Can't link to Webcast if copyright owner objects, CNET Dec 2006
  • Wikipedia
  • Knight McConnell v. Cummins, 03 Civ 5035 (SDNY July 29, 2004) "Plaintiff fails to state a claim for false designation of origin under the Lanham Act, 15 USC §1125(a)(1), based on allegations that defendant, who operates a site highly critical of plaintiff, has linked to plaintiff's web site without plaintiff's permission, has used plaintiff's name in the post-domain path of the URLs for several web pages, and has posted links on Internet chat forums and discussion boards directing users to visit these pages. To state a claim for false designation of origin, a plaintiff must show that she has a valid and protectable mark and that defendant's conduct is likely to cause confusion concerning the source or sponsorship of the goods or services in question. Even if plaintiff can show that she has a valid and protectable mark in her name, plaintiff fails to allege that defendant has engaged in any conduct that is likely to cause confusion as to the origin of defendant's web site. The mere appearance on a web site of a hyperlink to another site will not lead a webuser to conclude that the owner of the site she is visiting is associated with the owner of the linked site. Nor does defendant's use of plaintiff's name in the post-domain path of the URLs and the placement of those URLs on chat forums and search engines give rise to any source confusion"
  • Ford Motor Company v. 26000 Enterprises, Case No 01'CV'71685'DT (EDMI Dec. 20, 2001) Mere link from 2600 website, critical of Ford Motor Company, to Ford Motor Company, is not actionable.
  • Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, (D.C. Cal. March 31, 2000)
  • Universal City Studios Inc v Reimerdes, 111 FSupp2d 294 (DCNY 2000) : Defendants posted to their website a copy of the DeCSS program.  Court said take it down.  Defendants took down program but then linked to other sites that had the program.  Court said take down the links: linking to DeCSS violated the DMCA, crypto protection provisions, concluding that defendants were engaged in knowingly trafficking the illegal program. (DMCA AntiCircumvention Case)
  • Ticketmaster v. , No 99-07654 (CD Cal 1999) (deep linking does not equal unfair competition)
  • Intellectual Reserve v. Utah Lighthouse Ministry, Inc., 75 FSupp2d 1290 (D Utah 1999) Knowingly linking to infringing content constitutes contributory infringement.  PDF version of Order
  • Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal. 1998) (upholding use of "Bally" in the Metatags of a "Bally Sucks" consumer commentary website).
  • PLAYBOY ENTERPRISES, INC. v. UNIVERSAL TEL-A-TALK, INC., ADULT DISCOUNT TOYS, and STANLEY HUBERMAN Civil Action No. 96-6961 November 2, 1998 Filed: November 3, 1998 (enjoining defendant from using Playboy trademark on or in its websites)
  • Ticketmaster v. Microsoft, No 97-3055 DDP (CD Cal Filed May 9, 1997)
  • MS, Ticketmaster Bury Hatchet, Wired Feb 1999
  • Reportedly settled
  • ACLU v. Miller,  977 F. Supp. 1228 (N.D. Ga. 1997) EFGA
  • Insituform Technologies v. National EnfiroTech Group
  • Washington Post v. Total News
  • Materials available at CourtTV
  • Playboy enterprises Inv v. Calvin Designer Label
  • International
  • Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 (18 December 2006) Australia Website reportedly linked to illegal copies of copyrighted MP3
  • Copyright ruling puts hyperlinking on notice SMH Dec 19, 2006
  • Reactions to the Cooper decision Weatherall's Law
  • Australian court rules against MP3 link site CNET Dec 2006
  • Allowing Linking To MP3s Still Illegal In Australia; Ruling Will Hurt Both Tech And Entertainment Industries TechDirt Dec 2006
  • Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd 1997 S.L.T. 669 (Sess. Cas. 1996) (Scotland).
  • Other
  • Ticketmaster Corp.’s Complaint, Ticketmaster Corp. v. Microsoft Corp., No. 97-3055 DDP (C.D. Cal., filed Apr. 28, 1997)
  • Papers