News
Intellectual Property
Jun. 17, 2002
Practice of Deep Linking Has Given Rise to a Number of Copyright Suits
Focus Column - By Don Thornburgh - "Deep linking" is the practice of directing Web site visitors to content within a site operated by a third party. When the user's browser is redirected to the second site, and it is evident to the user that he or she are no longer viewing the original, then the link is generally considered inoffensive.
Focus column
By Don Thornburgh
"Deep linking" is the practice of directing Web site visitors to content within a site operated by a third party. When the user's browser is redirected to the second site, and it is evident to the user that he or she are no longer viewing the original, then the link is generally considered inoffensive. Other types of deep links, however, have given rise to various types of legal claims, largely because the site creating the link is taking advantage of the second site's content without compensation.
To understand the controversy, it is first important to understand why deep linking is not a simple issue of copyright infringement. One of the most fundamental characteristics of the Internet itself is the ability to direct users seamlessly from one point to another. Each such connection is generically referred to as a link. Linking can take many forms, and depending on such factors as the content, the context and the relationship between the two sites involved, a link may or may not give rise to a cause of action.
The two sides of this debate generally can be classified as the content owners seeking to prevent unauthorized deep links versus the third parties seeking open access to everything on the Internet, either for commercial gain or simply in the interest of the free flow of information. Whether you are representing a client that seeks to prevent unauthorized links to its content or one that seeks to link to other sites without incurring liability, it is helpful to understand the motivations of both sides.
Operators of commercial Web sites have a strong interest in preserving their ability to remain the primary beneficiaries of their sites' operation. If others can simply link to content within the site, avoiding its registration process, advertisements or other revenue generators, then the operator is being deprived of the value of its content.
On the other hand, from the linker's perspective, links to third-party content can add value to a Web site without incurring the development costs of creating it. In fact, some sites may not contain any original content (e.g., some portals and search engines), but instead derive their entire value from effective organization and access to third-party content.
Litigation over deep linking arises because deep linking is not directly analogous to any earlier type of copyright infringement. The causes of action are many, and while the particular circumstances may give rise to others, four of the most common theories are copyright infringement, breach of contract, business torts and unfair competition.
The first theory, copyright infringement, is based on the idea that the site that links to another site has misappropriated copyrighted elements in so doing. One of the threshold requirements for copyright infringement, however, is that the material must be copied without permission. Since most linking involves simply redirecting the user's browser to the content, no copy is made.
A recent case involving an infringement claim by a photographer against a search engine was a notable exception. Kelly v. Arriba Soft Corp., 2000 U.S.App.LEXIS 1786 (9th Cir. Feb. 10, 2002). There, the search engine results displayed a thumbnail version of the image, which, if selected by the user, caused a copy of the full image to be displayed.
The 9th U.S. Circuit Court of Appeals found the search engine liable for copyright infringement because the search results contained more than just a link to the photographer's Web site; they also contained an unlicensed copy of the images. The lesson was fairly clear: You can redirect users to copyrighted material, but in so doing, you cannot make use of a copy of such material.
The second likely cause of action arising from an unwanted link is breach of contract. The basis for this claim is that anyone who accesses content on a Web site has agreed (either implicitly or expressly) to the site's legal terms and conditions. If such terms prohibit certain types of linking from another site, and assuming that the user agreement is enforceable, then a link could constitute a breach.
This theory has not been well-tested in the courts. When Ticketmaster raised this claim in its lawsuit against rival Tickets.com, the court dismissed the claim pending further evidence that the terms had actually been read and accepted by the other party. Ticketmaster v. Tickets.com, 2000 U.S.Dist.LEXIS 4553 (C.D. Cal., dismissed Aug. 10, 2000).
Another approach is to argue that the unwanted link has caused some form of harm to the linked site's business under certain tort theories. In the same Ticketmaster case, Ticketmaster raised a tort claim, arguing that linking to pages within the Ticketmaster site, and thus bypassing the paid advertising, was detrimental to Ticketmaster's business relationship with those advertisers.
A plaintiff could advance similar theories, for example, if the links were to generate so much traffic as to crash or significantly slow down the site. These theories also have not been well tested in the courts, however.
Finally, the concept of unfair competition has formed the basis for claims that certain linking practices were used to mislead consumers about the source of the content or to create an unwanted affiliation. For example, if a client were to operate a news Web site and to link to the sites of various original news sources, users might well presume that an affiliation exists. Depending on the nature and quality of the linking site, the news sources may or may not welcome that association.
This theory has been litigated in several instances, including Washington Post v. Total News Inc., 97 Civ. 1190 (S.D.N.Y., filed Feb. 20, 1997), in which the defendant agreed in a pretrial settlement to remove its deep links to the plaintiff's news articles. The same situation is currently before a Danish court. The Danish Newspaper Publishers' Association awaits a ruling under similar circumstances where a competitor has been deep linking to its news stories.
Because there has been so little judicial attention to this issue, most site operators have continued to link as they deem necessary. Clients can take several steps to help reduce the risk of liability from linking:
• To reduce the risk of copyright infringement claims, have clients point links in a way that redirects the user's browser to the content without creating copies of any text or images.
• Encourage clients always to read the Web site's terms of use. Most will not prohibit linking to the site. If linking is prohibited, however, the client can contact the Webmaster to request permission, which frequently will be granted.
• To minimize the risk of a link causing harm to the linked site's business, craft the link so that it does not circumvent the format of the linked pages. If it is not realistic to link to the home page, at least link to the full page of the desired content, rather than framing the desired content and omitting advertisements or other revenue-generating material.
• Unfair competition claims likely will not apply if your client's site and the linked site do not constitute competitive offerings. If your client is linking to a competitor, however, be cautious and design the link so as to notify the user both of the exact purpose of the link and of the fact that they are being redirected to the other site. Also, clients should understand that it is advisable not to "frame" another site's content in line with their own content, as such behavior may be considered misleading if the source of the material is not readily apparent to the user.
• Lastly, advise clients to include appropriate notices, such as copyright and trademark notices, if the link itself contains any material in which the other party may hold rights.
If your clients' business includes any type of Web-based operation, they are likely to encounter some linking concerns at some point. Linking is too critical to the viability of the Internet ever to be prohibited or even significantly constrained by the law. More likely, those seeking to prevent unwanted links will turn to technological countermeasures that may alleviate the need for a legal remedy. Until such practices become more widely adopted, however, attorneys can assist their clients in navigating through the established legal pitfalls associated with linking.
Don Thornburgh is a Los Angeles attorney whose practice focus is intellectual property licensing, Internet and new media matters.
By Don Thornburgh
"Deep linking" is the practice of directing Web site visitors to content within a site operated by a third party. When the user's browser is redirected to the second site, and it is evident to the user that he or she are no longer viewing the original, then the link is generally considered inoffensive. Other types of deep links, however, have given rise to various types of legal claims, largely because the site creating the link is taking advantage of the second site's content without compensation.
To understand the controversy, it is first important to understand why deep linking is not a simple issue of copyright infringement. One of the most fundamental characteristics of the Internet itself is the ability to direct users seamlessly from one point to another. Each such connection is generically referred to as a link. Linking can take many forms, and depending on such factors as the content, the context and the relationship between the two sites involved, a link may or may not give rise to a cause of action.
The two sides of this debate generally can be classified as the content owners seeking to prevent unauthorized deep links versus the third parties seeking open access to everything on the Internet, either for commercial gain or simply in the interest of the free flow of information. Whether you are representing a client that seeks to prevent unauthorized links to its content or one that seeks to link to other sites without incurring liability, it is helpful to understand the motivations of both sides.
Operators of commercial Web sites have a strong interest in preserving their ability to remain the primary beneficiaries of their sites' operation. If others can simply link to content within the site, avoiding its registration process, advertisements or other revenue generators, then the operator is being deprived of the value of its content.
On the other hand, from the linker's perspective, links to third-party content can add value to a Web site without incurring the development costs of creating it. In fact, some sites may not contain any original content (e.g., some portals and search engines), but instead derive their entire value from effective organization and access to third-party content.
Litigation over deep linking arises because deep linking is not directly analogous to any earlier type of copyright infringement. The causes of action are many, and while the particular circumstances may give rise to others, four of the most common theories are copyright infringement, breach of contract, business torts and unfair competition.
The first theory, copyright infringement, is based on the idea that the site that links to another site has misappropriated copyrighted elements in so doing. One of the threshold requirements for copyright infringement, however, is that the material must be copied without permission. Since most linking involves simply redirecting the user's browser to the content, no copy is made.
A recent case involving an infringement claim by a photographer against a search engine was a notable exception. Kelly v. Arriba Soft Corp., 2000 U.S.App.LEXIS 1786 (9th Cir. Feb. 10, 2002). There, the search engine results displayed a thumbnail version of the image, which, if selected by the user, caused a copy of the full image to be displayed.
The 9th U.S. Circuit Court of Appeals found the search engine liable for copyright infringement because the search results contained more than just a link to the photographer's Web site; they also contained an unlicensed copy of the images. The lesson was fairly clear: You can redirect users to copyrighted material, but in so doing, you cannot make use of a copy of such material.
The second likely cause of action arising from an unwanted link is breach of contract. The basis for this claim is that anyone who accesses content on a Web site has agreed (either implicitly or expressly) to the site's legal terms and conditions. If such terms prohibit certain types of linking from another site, and assuming that the user agreement is enforceable, then a link could constitute a breach.
This theory has not been well-tested in the courts. When Ticketmaster raised this claim in its lawsuit against rival Tickets.com, the court dismissed the claim pending further evidence that the terms had actually been read and accepted by the other party. Ticketmaster v. Tickets.com, 2000 U.S.Dist.LEXIS 4553 (C.D. Cal., dismissed Aug. 10, 2000).
Another approach is to argue that the unwanted link has caused some form of harm to the linked site's business under certain tort theories. In the same Ticketmaster case, Ticketmaster raised a tort claim, arguing that linking to pages within the Ticketmaster site, and thus bypassing the paid advertising, was detrimental to Ticketmaster's business relationship with those advertisers.
A plaintiff could advance similar theories, for example, if the links were to generate so much traffic as to crash or significantly slow down the site. These theories also have not been well tested in the courts, however.
Finally, the concept of unfair competition has formed the basis for claims that certain linking practices were used to mislead consumers about the source of the content or to create an unwanted affiliation. For example, if a client were to operate a news Web site and to link to the sites of various original news sources, users might well presume that an affiliation exists. Depending on the nature and quality of the linking site, the news sources may or may not welcome that association.
This theory has been litigated in several instances, including Washington Post v. Total News Inc., 97 Civ. 1190 (S.D.N.Y., filed Feb. 20, 1997), in which the defendant agreed in a pretrial settlement to remove its deep links to the plaintiff's news articles. The same situation is currently before a Danish court. The Danish Newspaper Publishers' Association awaits a ruling under similar circumstances where a competitor has been deep linking to its news stories.
Because there has been so little judicial attention to this issue, most site operators have continued to link as they deem necessary. Clients can take several steps to help reduce the risk of liability from linking:
• To reduce the risk of copyright infringement claims, have clients point links in a way that redirects the user's browser to the content without creating copies of any text or images.
• Encourage clients always to read the Web site's terms of use. Most will not prohibit linking to the site. If linking is prohibited, however, the client can contact the Webmaster to request permission, which frequently will be granted.
• To minimize the risk of a link causing harm to the linked site's business, craft the link so that it does not circumvent the format of the linked pages. If it is not realistic to link to the home page, at least link to the full page of the desired content, rather than framing the desired content and omitting advertisements or other revenue-generating material.
• Unfair competition claims likely will not apply if your client's site and the linked site do not constitute competitive offerings. If your client is linking to a competitor, however, be cautious and design the link so as to notify the user both of the exact purpose of the link and of the fact that they are being redirected to the other site. Also, clients should understand that it is advisable not to "frame" another site's content in line with their own content, as such behavior may be considered misleading if the source of the material is not readily apparent to the user.
• Lastly, advise clients to include appropriate notices, such as copyright and trademark notices, if the link itself contains any material in which the other party may hold rights.
If your clients' business includes any type of Web-based operation, they are likely to encounter some linking concerns at some point. Linking is too critical to the viability of the Internet ever to be prohibited or even significantly constrained by the law. More likely, those seeking to prevent unwanted links will turn to technological countermeasures that may alleviate the need for a legal remedy. Until such practices become more widely adopted, however, attorneys can assist their clients in navigating through the established legal pitfalls associated with linking.
Don Thornburgh is a Los Angeles attorney whose practice focus is intellectual property licensing, Internet and new media matters.
#334808
Columnist
Daily Journal Staff Writer
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com