Features - Thinking About Linking, Part I: Can Law Accommodate theBy Bradley J. Hillis, Published on April 15, 1998
Bradley J. Hillis is a member of the Washington state bar, and the author of "Internet Experiments in Electronic CourtFiling," "Considerations When Placing Court Opinions on the Internet," and "Legal Research on the Internet: A Simple, How To Guide." He lives in Bellevue, Washington, and is a legal analyst for the Office of the Administrator for the Courts.
(Archived May 15, 1998)
I'm naughty by nature,
Not cause I hate you.
--Naughty By Nature
The Internet is a vast market for owners of intellectual property to reap profits. The Net is also a medium for the creative expression and free exchange of ideas. The law of linking and the rules for framing Web sites are crucial to the development of the Web for both commerce and society. Literal application of copyright law may not suit Internet technology. For example, if copying information to a Web browser cache is illegal the Net cannot function. The same problem can arise with framing, if one argues that a Web browser frames all content appearing in it. Or perhaps the desktop illegally frames the software appearing on the computer screen?
Though skeptics sometimes forecast a future where electronic information is illegally exploited, instead what is at play is the inherent character of the Internet. To borrow from a famous rap lyric, the Internet is "naughty by nature," but not because it hates authors or artists.
This article examines the relationship of linking to copyright law, and argues that rules of law governing the practice should recognize that Internet technology provides an unprecedented ability to share information. Of equal importance is the Internet's empowerment of the individual to customize and interact with electronic information. The end result is that the large online audience will allow copyright owners to reap commercial gain if the legal foundations for copyright licensing adapt to technology.
New Media, Old Rules
The law of online copyright can seem confusing because there is a struggle, reflected in several cases in 1997, to adapt legal rules to new media technology.1 The results are important for the First Amendment right of freedom of speech and the development of useful online content and electronic commerce. If the law of linking goes too far in limiting the ability to tie together Web sites, property owners will have shot themselves in the foot by limiting the online commercial development that is essential to expanding lucrative markets.
The problems that arise in the law of linking illustrate flaws in the current approach to Internet law generally, whether personal jurisdiction or censorship. In a tension that is a central theme of civilization since Galileo, Kepler and Newton challenged the church's notion that the earth was the center of the universe, law needs to listen to science to succeed, even as both law and science are part of the fabric of the cultures in which they exist.
What are Links?
Hypertext links between sites provide the ability to connect related ideas and create communities. A link can also launch a software application, cause a picture to appear at a site across the country from where it is stored, or begin a file download. A link often takes the form of underlined or specially colored text. Within a legal brief, a link from a case name to the full text of the case allows a judge to know whether the attorney has properly characterized the holding. Links are an inherent part of the Web and a hallmark of what makes the Internet a new form of digital media. 2
Some commentators argue that limits on linking are equivalent to limits on thought and free expression, and this understanding, while not dispositive of the issue, will shape the success of the legal model for control of online copyright.3 For example, if a Web site displays the address for another site in text, so that the user must copy and paste the address into the Web browser address bar, is this any less a link than a fully functional hypertext link? One is tempted to say no, there is no difference. But what about an "inline link" where a graphic appears at one site that is hosted at another, an effect accomplished by citing the Web address of the graphic in the underlying HTML. Having the address of a graphic in text format at a site seems acceptable and is different than having the actual graphic appear. What is happening is that Web has the ability to move space around in ways we are not used to from past experience, and links reflect that change.
Current Law of Linking
To summarize the law of linking as it now exists, one can link to the front page of a Web site, with several caveats. Commercial outfits need a cross link license. 4 If one is framing another site, and has advertising in the navigation frame, a license from the framed site is needed. Deep linking, which is linking to a page deep within another Web site, can cause copyright concerns. An example of an acceptable link to the Disney front page is 'www.disney.com' while a deep link at the same site is 'www.disney.com/movies/bambi/scene2/'." The criticism of deep linking is that it diverts visitors from a site's front page, and thus diminishes the site's ability to expose visitors to advertising, disclaimers or navigation appearing on the gateway page. Inline image linking, the act of placing an image at your site that resides on another host: don't even think about it.
If you are running a personal site, with no commercial motive, you can engage in a limited amount of deep linking, and even framing. However, if a noncommercial site proves successful and has a lot of visitors, it is deemed to have become commercial regardless of intent, and the above rules apply. For text links, you either need to clearly identify the site you are linking to or, then again, if you use the trademark name of the site you may have diluted the copyright so you are better off coming up with your own description of the site. 5
If the rules seem vague it is because they developed in fact-specific cases and do not work very well when applied across the myriad examples found on the Internet. Another problem with the law of linking is the global nature of the Net. For example, the Singapore Supreme Court site uses frames to link to several legal research sites located on servers in the United Kingdom and the United States. Which law applies in that instance?
The law of linking is developed in two prominent cases, with several new cases under consideration. The two cases are the Sidewalk-Ticketmaster litigation over deep linking, and the TotalNews case concerning framing.
Total News and Framing
The TotalNews litigation ostensibly shows that a company that has had its material framed by a commercial site need only insist that the framing stop.6 Ah, but only if the world were so simple! According to a story in Wired News, in the days after TotalNews settled the litigation, it began to offer users the ability to frame other news organizations content through creation of a personal page.7 This feature allows a user to build a frame page with designations of the news sites that will appear in each panel. The distinction was that TotalNews was not framing the content. Instead the individual user was establishing the frames. Customizing the desktop of a private user did not violate copyright, argued the TotalNews owner, Roman Godzich.
While the TotalNews argument seems silly, it illustrates a profound aspect of the Internet. When each user possesses the sophistication to build a home page with HTML, he or she will have the tools to manipulate information to display in a customized format. The font of text will appear as large or small, depending on the desire to make text easier to read or to fit more information on the screen, respectively. The background color will reflect the tastes of the user. And, the user will have a voice synthesizer to read the text, upon demand (well, actually, Apple Macintosh users already have this feature, but eventually PC users will have this, too...I said, eventually.)
Will copyright owners have a cause of action against each private citizen for customizing text? Apart from the practical problems of collecting pennies in damages against billions of households, is the customization of content for private viewing illegal? At first one would say, yes, or maybe no, or...well, now I'm confused. Again, the Internet is naughty by nature, not because it hates you.
What if the user is on a local area network so that other users can access the information--has the user "published" the customized content? What if the user has a small hard drive and prefers to keep all content at his or her personal Web directory? By the way, one model for the future of personal computing is to place more material on a Web server, in effect moving part or all of the hard drive to a network or cyberspace. Does it matter if there is no online HTML page setting up the text, and that the Web page exists only on the user's hard drive, that is, are users entitled to deem material on a Web server as "private" as their desktop hard drive? Does it matter if the user has a statement on the Web site, "this information is for my private use only." Does it matter to copyright law if a group of 15 friends share customized information as part of their cyber-community? One can picture a skilled law professor hammering away at subtle distinctions for some time.
The TotalNews litigation yielded a reasonable rule--copyright holders control how their content is displayed in cyberspace, and other commercial entities cannot leverage, through framing, that content to their own gain. However, extension of that legal rule to the logical conclusion yields a more problematic paradigm. If one decides that each individual can control the content on the desktop, one then must face the situation where publishing that altered content online to share with friends has almost no cost barriers.
The rule then becomes that an individual can customize text on the desktop. But in an effort to accomodate the reality of open networks, we will have to define the desktop as a virtual private network of, say, up to 15 friends. Under the rubric of "give an inch and they take a mile," this rule then recognizes that since the Net lacks geographical limits, suddenly I have a lot of friends in my community, so let's bump the limit to 150 people, or 1,500, but really there is no limit. So this stab at a rule proves difficult.
Somehow, the law needs to develop a meaningful distinction between permitted private customization of intellectual property, permitted sharing of customized information among like-minded communities, and impermissible re-publication of that material, whether commercial or non-profit. The copyright holder deserves protection, yet the ability of a sophisticated user to customize and publish electronic information is a reality that simply will not go away with FBI agents busting down the bedroom doors of suburban high school hackers. Legal scholars have yet to undertake the necessary analysis for a rule of law that is adequate for future developments.
Tickmaster and Deep Linking
Like the TotalNews case, the Sidewalk-Ticketmaster litigation provided a reasonable rule that strains when logically extended to other factual circumstances.8 In that case, Microsoft was negotiating with Ticketmaster to link from features or reviews of events, in its Sidewalk Web site, to the sale of tickets at the Ticketmaster site. Consumers would find convenient to link directly to the page at Ticketmaster about a specific event discussed at a Sidewalk page, according to the business model. The negotiations broke down, however, and nevertheless Sidewalk went ahead and linked to the Ticketmaster pages. The resulting lawsuit was settled and no court opinion was issued. But the settlement of the lawsuit stands for the rule that deep linking is a copyright violation.
This rule seems reasonable in the factual circumstances involved in the case. Ticketmaster is a copyright owner and wants to control how visitors will interact with its site. The only way Ticketmaster can do that is by having visitors come to the front page and follow the navigation to the material they are seeking.
But deep linking is pervasive for a reason. A strength of hyperlinks is the ability to drill down to the specific page with the relevant idea, text or graphics. If I have a page on Year 2000 legal issues, I do not want to link to the front gateway page of C/Net; I want to link to the specific story that ran last week on Year 2000 computer bug problems. Links to front pages are an absurd curbing of the power of the Internet to allow users to bring together relevant ideas and manipulate them creatively to add intellectual value. Comparing and contrasting ideas online is done with the use of hyperlinks to precise pages, or even points within those pages.
One distinction we could draw from the Ticketmaster litigation, then, is commercial entities cannot deep link but a private individual can. This is unsatisfactory, however, since an individual's Web site can seem commercial, even if not as successful, as a corporation's Web site.
The proper rule for deep linking needs further refinement. There is a need to allow Ticketmaster to control its Web space, and how visitors access it. There is also the need to accomodate the creative development of online ideas by allowing Web builders to bring together or juxtapose similar ideas, even if the ideas are buried deep within different Web sites.
Part II of this article covers technology fixes to framing and linking, and the validity of request not to link or frame.
- Robert Cumbow's list of Net law, Web Site Issues (Linking, Framing, Mirroring, Spoofing), collects Internet cases, and notes a new case on the framing issue: Futuredontics Inc. v. Applied Anagramic Inc., CV 97-6691 ABC (MANx) (C.D.Cal. 1/30/98). <back to text>
- Freedom to Link Under Attack: Web Community Up in Arms Over Lawsuits, by Emily Madoff, The New York Law Journal, June 23, 1997. <back to text>
- Hyperlinks: A Form Of Protected Expression? A Georgia federal court implies a 1st Amendment 'right to link' defense to infringement claims, by Jeffrey R. Kuester and Peter A. Nieves , The National Law Journal (p. C10), Monday, January 26, 1998. The case discussed is: American Civil Liberties Union v. Miller, 43 U.S.P.Q.2d 1356 (N.D. Ga. 1997). <back to text>
- Why You Need Cross-Link Agreements, (www.ljx.com/newsletters/internet/1998/1998_01_00.html ) by Richard K. Herrmann. Herrmann argues that cross link agreements are needed when: "*Where the first party creating the hyperlink has a site that incorporates trademarks from the second party's site; *Where the first party links to a private or internal page within the second party's site; and *Where the first party incorporates large amounts of text from the second party's site into its own Web page through use of a frames." <back to text>
- Dangerous Liaisons: The Legal Risks of Linking Web Sites, by Richard Raysman and Peter Brown, The New York Law Journal, April 8, 1997,  "In addition, liability may arise under the Federal Trademark Dilution Act of 1995 (Pub. L. 104-98, §3[a], 109 Stat. 985, codified at 15 USC §1125[c]) if the links, images or framed materials are used in a way that effectively decreases the capacity of a famous mark to identify and distinguish goods or services." <back to text>
- Washington Post Co. v. Total News Inc., 97 Civ. 1190 (S.D.N.Y., Feb. 20, 1997). See Metasites Linked To IP Violations: Web sites framed or linked to other sites may enjoy greater exposure, but some are suing the framing sites for infringement, by Barry D. Weiss, The National Law Journal (p. B09), Monday, July 21, 1997. <back to text>
- A discussion of how TotalNews continued to offer framed news after its settlement is found at: TotalNews Pokes a Stick at Big Media Again, by Scott Kirsner, WIRED MAGAZINE, June 11, 1997. <back to text>
- Ticketmaster Corp. v. Microsoft Corp., 97 Civ. 3055 (C.D.Ca. April 28, 1997). Another deep linking case that raises similar issues is Shetland Times v. Shetland News. __ Sess. Cas. __ (1996), which limited the practice of a news site to have links to specific stories at a competing news site. <back to text>