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Why is deep linking objectionable?
Case: Danish Newspaper Publishers
Case: Ticketmaster
Play it safe: two steps to take before you
deep-link
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Posted 11/8/02
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Article
Whether linking to a page deep within another person's website is legal remains an open question
By Richard C. Balough, Attorney at Law
and David M. Freedman
About the authors
Your e-newsletter contains a link to someone else's website — let's call it XYZ.com. You did not get permission from XYZ Corp. to include the link in your publication. In fact, you didn't notify XYZ that you linked to their site.
All the material on XYZ.com is copyrighted. By linking to XYZ's copyrighted material, are you infringing on its copyright? Good question, for which there is no good
answer — yet.
Courts have found that if you "frame" XYZ's material and make it look as if the
material is yours, or originates at your website, then there is a definite
copyright infringement.
But if you make it obvious that XYZ.com is a separate and distinct website from yours and that the material is not yours, then courts will look to see whether you are making
"fair use" of the material allowed under the copyright laws.
So far, only Denmark has found that a link to a web page deep within another website may be infringing on that person's copyright. The best way to legally link to another site in Denmark is
to (a) link to the other site's home page, and (b) give instructions for drilling down to the material you want the reader to find.
Deep-linking is a significant issue because, as Shel Holtz, author of Public Relations on the
Net, points out, "At its core, the World Wide Web is all about linking."
Why is deep linking objectionable?
When you provide a hypertext link (or a link embedded in an image) to another website's home page, that's considered home-page or first-tier linking. When you provide a link to a second- or third-tier page in that same site, that's deep linking. Why would XYZ Corp. object to anyone linking to one of its second-tier pages? Because the visitor skips the home page, where XYZ lets the world know who it is and, more importantly, what it sells and how to buy it. The visitor who goes directly to XYZ's second-tier page misses the sales pitch, advertising, terms and conditions, and branding elements which XYZ spent a fortune to develop — all of which reside on, or is accessible from, the home page.
Danish Newspaper Publishers v. Newsbooster
Even more problematical is when you link to a copyrighted news story deep within a news-media site. That was the issue in the Danish case:
Danish Newspaper Publishers Association vs. Newsbooster. A court in Copenhagen ruled in July 2002 that Newsbooster violated the Danish Copyright Act and the Danish Marketing Act by deep-linking to newspaper articles on some Danish newspapers' websites. By doing so, the court said, Newsbooster was profiting from the use of other companies' products and/or services. For a more thorough report on that case, see Wired.com's article "Deep Link Foes Get Another Win," by Michelle Delio
(click here).
The Newsbooster case could be overturned on appeal, or it could "trickle down" to other European Union countries and beyond, and affect millions of websites. Or it could remain a peculiarly Danish thing.
Ticketmaster v. Tickets.com
In the U.S., the matter is far from resolved. In Ticketmaster v. Tickets.com, (2000, CA), U.S. District Judge Harry Hupp said,
"Hyperlinking does not itself involve a violation of the Copyright Act since no copying is involved." He also pointed out that deep-linking is "analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently." (For more information on the Ticketmaster case, see "Emerging Legal Guidance on 'Deep Linking,'" by Margaret Smith
Kubiszyn, posted at GigaLaw.com. (See footnote)
As an added protection, some copyright owners have posted a notice on their home
page prohibiting linking without permission. The theory for the notice is that by deep linking you would violate the terms of use for the website and could be sued for violating that "contract."
Here's another potential problem: If the link circumvents other technical measures that the copyright owner has put in place to protect the work, a deep link under those facts also would violate the Digital Millennium Copyright Act.
Play it safe
To stay out of trouble, before you post a deep link to any copyrighted material on a web page other than a home page, you should:
- Seek permission from the copyright owner. If your newsletter is non-commercial and you're not competing with the copyright owner, you'll probably get permission.
- If you can't get permission, or you're unable to reach the copyright owner, simply link to the site's home page (as in Denmark) and give "click on" instructions for drilling down to the material in question.
Footnote:
More recently, a U.S. Federal Court of Appeals found that it was not a fair use under the copyright law for a search engine to display a full-sized image of a photographer's work from his website. (Kelly v. Arriba Soft Corporation). However, a thumbnail image posted on the same site was not a violation of the copyright law. The court distinguished between the two sizes by finding that the thumbnail was not useful, while the full-size image could interfere with the photographer's ability to sell his images.
"By giving users access to Kelly's full-sized images on its own web site, Arriba harms all of Kelly's markets," the Court wrote. "Users will no longer have to go to Kelly's web site to see the full-sized images, thereby deterring people from visiting his web site. In addition, users would be able to download the full-sized images from Arriba's
site and then sell or license those images themselves, reducing Kelly's
opportunity to sell or license his own images. If the display of Kelley's images
became widespread across other web sites, it would reduce the number of visitors
to Kelly's web site even further and increase the chance of others exploiting
his images."
About the authors
Richard C. Balough is a Chicago attorney who focuses on the areas of
intellectual property, e-business, telecommunications, and Internet law. Contact
him at 312-834-0400 or visit www.balough.com.
David M. Freedman is a freelance writer specializing in legal and financial
topics. He is the founder and director of Newsletter Strategy Session (www.nwsltr.com).
Contact him at 847-433-5000 or visit
www.freedman-chicago.com.
DEFINITION:
A client newsletter is one that you distribute free, primarily to
clients, prospective clients, referral sources, and other stakeholders
of your firm. Its objective is to be informative, to demonstrate your
expertise, and to promote your services, rather than to earn a profit.