If you own a business that uses online systems, you want to make sure you work within the law. But what are your rights? What can and can’t you do on your website?
For example, what’s to stop you linking to other content on other websites?
Check out www.ChillingEffects.org. This is a website based on an ever-growing database of Cease and Desist notices that have been issued to online businesses, search engines, ISPs and others. Amongst other info, Chilling Effects includes some helpful FAQs including FAQs about hyperlinks, FAQs about Copyright and FAQs about Trademarks.
Here are a couple of FAQs from the section on hyperlinks. The info was written by the Electronic Frontier Foundation. (and is reproduced here as fair use with full acknowledgement and links to ChillingEffects.org and the EFF.)
Question: If a hyperlink is just a location pointer, how can it be illegal?
Answer: It probably isn’t, however, a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material:
- In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. (See Anticircumvention (DMCA).) The court ruled that it could regulate the link because of its “function,” even if the link was also speech.
- In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work’s copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.)
By contrast, the court in Ticketmaster v. Tickets.com found that links were not infringements of copyright.
Like anything else on a website, a hyperlink could also be problematic if it misrepresents something about the website. For example, if the link and surrounding text falsely stated that a website is affiliated with another site or sponsored by the linked company, it might be false advertising or defamation.
Finally, post-Grokster, a hyperlink might be argued to induce copyright infringement, if the link were made knowing that the linked-to material was infringing and with the intent of inducing people to follow the link and infringe copyright.
In most cases, however, simple linking is unlikely to violate the law.
Question: Is “deep linking” illegal?
Answer: “Deep linking” refers to the creation of hyperlinks to a page other than a website’s homepage. For example, instead of pointing a link at http://www.chillingeffects.org, this site’s “homepage,” another site might link directly to the linking FAQ at http://www.chillingeffects.org/linking/faq .
Some website owners complain that deep links “steal” traffic to their homepages or disrupt the intended flow of their websites. In particular, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled its claim against Microsoft and lost a suit against Tickets.com over deep linking.
From Ticketmaster v. Tickets.com opinion:
Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page 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.
So far, courts have found that deep links to web pages were neither a copyright infringement nor a trespass.
ChillingEffects is a handy resource for some quick legal answers as well as the searchable database of take-down notices of content that has been ordered off the web.
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