Like so many crisis situations, this one started out innocently enough. An e-mail arrived in the Webmaster’s in box from a local Net entrepreneur who was in the process of setting up a site that would feature, as I understood it, classified ads for vehicles in streaming-video format. In an effort to add content, and perhaps, legitimacy, to his venture, he was including a page of links to local government agencies. He had, he said, already "swiped" the city logos from two nearby municipalities’ Web sites to use on his pages, but he couldn’t find a Clearwater logo on our site, and asked if we could send him one via e-mail.
Since we have pretty clear-cut guidelines in our city charter about use of the city seal and logo that basically nix any sort of commercial display, I sent back a reply to this fellow telling him that he couldn’t use our logo. In response, I received an insult-laden e-mail filled with all sorts of dire, empty threats. I forwarded this digital hot potato to the city attorney’s office. Interestingly, this gentleman had already spammed them with his complaints, ranting that I had told him he couldn’t link to our site - an obvious fiction, which even a quick read of my initial reply to him made perfectly clear. "No, you cannot use our logo but you are free to link to our Web site. This doesn’t, however, obligate us to link to you," I wrote.
At any rate, the city attorney’s paralegal wrote back to this individual, telling him more or less the same things I’d already told him. Blessedly, we didn’t hear from him again. End of story?
The Webmaster - having done a bit of research, seeing that the can was half open and realizing the worms were beginning to slither out—sent an e-mail to the city attorney, suggesting that perhaps it was time to develop some written guidelines about links on the city Web site. The court case that sounded this particular wake-up call was The Putnam Pit, Inc.; Geoffrey Davidian, Plaintiffs-Appellants, v. City of Cookeville, Tennessee; Jim Shipley, Defendants-Appellees. ELECTRONIC CITATION: 2000 FED App. 0235P (6th Cir.) File Name: 00a0235p.06 United States Court of Appeals for the Sixth District (http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=00a0235p).
The Putnam Pit (http://www.putnampit.com) is an alternative newspaper that proclaims itself to be "Putnam County’s watchdog press." Its editor, Geoffrey Davidian, has a long history of bedeviling local public officials. In the appellate court opinion, he’s described as a "self-appointed eye on government corruption for the city of Cookeville" who makes frequent and numerous document requests of the city and has repeatedly sued it.
This particular case hinged on two issues: Davidian’s request for a copy of computer files containing information about outstanding parking tickets, and his request for a link from the city’s Web site to his own. The city provided Davidian with the info about the parking tickets in hard copy rather than electronic format, and it denied him a link on its Web site. He sued, according to a summary provided by the Georgia Municipal Association (GMA; http://www.gmanet.com), "for violations of the First Amendment, his Fourteenth Amendment rights of due process and equal protection, and a variety of state law claims."
Whereupon, the GMA summary continues, "The city removed the action to federal court and the district court granted the city’s motion for summary judgment on the federal claims and dismissed the state law claims without prejudice." Davidian appealed.
The Sixth Circuit affirmed the district court’s judgment regarding the parking ticket information, opining that the First Amendment doesn’t guarantee access to information in a particular, specified format. In other words, the hard copy was good enough and Davidian’s rights weren’t violated because he wasn’t provided with the information in digital format. However, the GMA summary explains, the appeals court "reversed and remanded with respect to the First Amendment claim concerning the city’s Web site."
The court determined that the city’s Web site was a nonpublic forum for the purpose of First Amendment analysis but found that the city’s policy on allowing links from the city’s Web site was not viewpoint-neutral. Prior to Davidian’s request for a link from the city site to his own, the city had allowed several for-profit and nonprofit entities to have a link, including a local technical college, two Internet service providers, a law firm, a local computer club, a truck-product manufacturer, and a site with information about the city. After Davidian’s request, the city changed its policy to limit links from the city’s Web page to nonprofit organizations. The city admitted, however, that even if The Putnam Pit was nonprofit, Davidian still would not get a link. The city then changed its policy to allow only links from the city Web site to sites that would promote the economic welfare, tourism, and industry of the city. While the court found that the city had rational and legitimate reasons for limiting the number of links from the city Web pages, the court found that the city’s implementation of this policy suggested impermissible viewpoint discrimination. For this reason, the court remanded to the district court for further proceedings to determine if Davidian’s First Amendment rights were violated by the city’s denial of a hypertext link.
—Georgia Municipal Association (http://188.8.131.52/gma/legal/details.cfm/1281)
Folks, IANAL (I Am Not A Lawyer), but if you run a Web site for a public entity - a government agency, a city or county library system, or even maybe a public school or university - you need to pay attention to this case and think about developing a written policy for linking if you don’t already have one. The initial reaction of our city attorney’s office was, "Well, can’t we just say something like ‘We don’t link to any commercial sites - just nonprofits?’"
For one thing, the Clearwater Public Library System maintains a local Internet directory (http://www.clearwater-fl.com/cpl/locint.html) that links to local media outlets and tourist attractions that are most definitely commercial entities. The library also provides an extensive Internet reference directory (http://www.clearwater-fl.com/cpl/refdesk.html) that links to all sorts of sites that the reference staff has judged to have worthwhile content. Some of these are, indeed, commercial sites.
In addition, I keep a page of "recommended links"—sites suggested by various city departments—to which I add virtually anything a particular department thinks is useful (http://www.clearwater-fl.com/links.html). Just about all of these links are to government agencies, professional associations, and the like, but there are a few commercial sites mixed in there.
The only disclaimer we’ve been carrying on our Web site until now is this one: "The appearance of a link on this Web site to a business or commercial site does not constitute an endorsement by the city of Clearwater." (http://www.clearwater-fl.com/about.html#3)
Well, the city attorney’s office has agreed that we need something more comprehensive, so one of the paralegals has been prowling the Web sites of other municipalities to see what’s out there. She found one at Camarillo, California’s site that she thinks looks pretty good (http://www.ci.camarillo.ca.us/govt/legal.html)—particularly the following paragraph about linking to "third-party sites":
The links included within the city of Camarillo’s Web pages may let you leave the city of Camarillo’s Web site (linked sites). Links are limited to those that meet our governmental purpose. The linked sites are not under the control of the city of Camarillo and the city of Camarillo is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. The city of Camarillo is not responsible for Webcasting or any other form of transmission received from any linked site. The city of Camarillo is providing these links only as a convenience, and the inclusion of any link does not imply endorsement by the city of Camarillo or any association with their operators.
I also explored this issue on the Web4Lib discussion list (http://sunsite.berkeley.edu/Web4Lib), asking if anyone had written policies about linking that they would be willing to share. Shelley Voie, document management services librarian at Boeing, replied that she’d been collecting linking policies and shared the relevant URLs (http://sunsite.berkeley.edu/Web4Lib/archive/0008/0194.html).
Meanwhile, linking issues are also hot news in the wider world beyond libraries and the public sector. Brad Templeton, who founded the ClariNet news service in 1989 (essentially the first dot-com company on the Internet), writes: "I, and many other people initially had the intuitive feeling that it could never be a violation of copyright to make a link to a Web page. Of late, I’ve come to think that this might be wrong in some cases, when you’ve been ordered not to" (Linking Rights; http://www.templetons.com/brad/linkright.html)
In a September 7 column, "Assessing Linking Liability," New York Times legal analyst Carl S. Kaplan discussed the implications of the previous month’s court case forbidding not only Web publication of a controversial piece of software that facilitates the decoding of DVDs, but also disallowing links to remote sites where the software could be found. According to the district court judge behind the ruling, "… a link can be bad or good. It mainly turns on whether the linker’s intent is laudable or not."
And in August, ZDNet’s Inter@ctive Week reported on a case in which "A small California company has run afoul of evolving securities regulations because a Web site posted a notice of its initial public offering … without telling the company or any of its underwriters." (http://www4.zdnet.com/intweek/stories/news/0,4164,2609687,00.html)
On and on it goes, in our notoriously litigious society. Obviously, if you’re responsible for a Web site or any portion thereof, you need to have more than a passing familiarity with this stuff. May I recommend the following:
• BitLaw: Linking and Liability (http://www.bitlaw.com/internet/linking.html) - "Links between content on the Internet are ubiquitous, and no doubt will remain so. Nevertheless, there are questions about the legality.... This portion of BitLaw explains the mechanics of linking and situations in which links may cause legal problems...."
• Libel Defense Resource Center: Link Law: The Emerging Law of Internet Hyperlinks (http://www.ldrc.com/cyber2.html) - Comprehensive overview of legal issues related to Internet linking by the Libel Defense Resource Center, a nonprofit information clearinghouse that monitors and promotes First Amendment rights in libel, privacy, and related fields of law
• LLRX.com: Thinking About Linking (http://www.llrx.com/features/weblink1.htm) - "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."
• Perkins Coie: Internet Case Digest: Linking (http://www.perkinscoie.com/casedigest/icd_results.cfm?search=linking) - Summaries, with pointers to relevant articles, of court cases dealing with Internet linking issues
• The Link Controversy Page (http://www.jura.uni-tuebingen.de/~s-bes1/lcp.html) - Intended to provide an overview of the legal problems of using hyperlinks, inline images, and frames on the World Wide Web. Right now, this page covers problems in the area of copyright, trademark, and trespass law as well as unfair competition law.
This article has been reprinted in its entirety from the November 2000 issue of
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