The Practical Mac

Your Right to Link Threatened

- 2002.04.30 - Tip Jar

The Internet was built on the foundation of the free and easy exchange of information. Increasingly, some large corporate entities have been trying to throw up roadblocks to this ideal. A favorite and recurring target is the practice of "deep-linking." Deep links bypass the front page of a website and carry the visitor to a page deeper in the hierarchy of the target site.

In one of the first cases to test the legality of deep-linking, TicketMaster filed a lawsuit against Microsoft to stop MS' now-defunct Seattle Sidewalk Web from linking to TicketMaster's site in April 1997. The case was settled when the two companies worked out an agreement to license TicketMaster's content.

In early 2000, eBay tried to stop other auction sites (such as AuctionWatch.com) from providing listings and links to items offered for sale on eBay. AuctionWatch signed a licensing agreement with eBay, allowing AuctionWatch's users to search for items that are available on eBay's site, effectively ending the case.

...Hupp ruled that websites can legally provide links to any pages on all other sites. Hupp said deep linking is not illegal as long as it's clear to whom the linked page belongs.

Later that year, Tickets.com won a ruling in a case filed by TicketMaster that alleged that deep linking should be banned. U.S. District Judge Harry Hupp ruled that websites can legally provide links to any pages on all other sites. Hupp said deep linking is not illegal as long as it's clear to whom the linked page belongs.

"Hyperlinking does not itself involve a violation of the Copyright Act," Hupp said in his ruling. "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."

Quoted at the time on wired.com, website designer Laszlo Pataki favored the Judge's decision. "Bottom line is if you stop people from linking, then the Web is no longer a Web," he said. "It would become a collection of isolated chunks of information. The Web is based on the concept of hyperlinking out to other sites. And it worked fine for all concerned until the big corporations started setting up their cyber tents online."

Is this medium a free source of information for the benefit of the people, or a controlled presentation of branded content that benefits commercial interests?

Interviewed in the same Wired article, intellectual property rights legal consultant Darren Deutschman stated, "The deep linking issue attempts to answer the question that's been asked since the Internet first became part of the general public's consciousness: Is this medium a free source of information for the benefit of the people, or a controlled presentation of branded content that benefits commercial interests?"

Fast-forward to December 2001. The international tax and audit firm KPMG attempts to silence a website in Britain which had been critical of the company. In a letter to the owner of the web site, KPMG said it had discovered a link on the site to www.kpmg.com, and that the website owner, Chris Raettig, should "please be aware such links require that a formal Agreement exist between our two parties, as mandated by our organization's Web Link Policy." The letter added that Raettig should feel free to arrange this "Web Link Agreement" with KPMG, but that until he has done so, he should remove his link to the company's home page.

Raettig fired off a reply letter to KPMG, the gist of which was that, if every hyperlink on the Internet required a formal written agreement between the parties, the Internet would most likely not exist. Raettig also posted his correspondence with KPMG online and, not surprisingly, within a few days, there were dozens if not hundreds of additional links to kpmg.com all over the Internet.

One might justifiably think this issue was settled. However, at least one company, the Danish Newspapers Publishers Association, seems intent on resurrecting the issue. The association wants the court to ban news feed service Newsbooster from deep-linking to Danish newspaper stories and recently applied for a preliminary injunction from a Danish court to do just that.

A preliminary injunction is merely a temporary order, pending the final outcome of a case. The Association will ask the Court to stop the deep-linking from Newsbooster until the Court issues a final decision on the case after a trial. This case will not likely be decided for sometime.

Regardless of the outcome, the case is not likely to have much influence in the United States. The TicketMaster case seems to have settled the issue here, at least for the time being. Courts in the U.S. have also recently refused to force Yahoo to abide by a French Court's decision barring it from allowing anyone in France to view auctions of Nazi memorabilia.

Deep-linking goes to the very heart and soul of the Internet.

However, this is still a troubling case. Deep-linking goes to the very heart and soul of the Internet. If the simple process of posting a link to another site becomes mired in regulation, it is not inconceivable that the Internet as a useful communication could begin to wither. Fortunately, as the KPMG incident demonstrates, this is not an area where large corporations have any real advantage just from being large corporations. Online, at least for now, a single individual still has the power to put even the largest corporation in its place. This is the promise of the Internet. It is a promise that is endangered, but one which must be preserved.

The threat is this. Undoubtedly, many corporations wish to change the current state of the law to give them more of an advantage online. The way they are seeking to do this is through lobbying members of Congress, as well as the President.

Now most of us do not have the financial wherewithal to compete with the corporate sector when it comes to dumping wheelbarrows full of money on the porches of our elected representatives. However, we have a very important power that all corporations lack: The power of the vote. I urge you, our readers, to contact your local Congressional Representative, as well as both of your state's U.S. Senators, and make your opinion known on this issue. If our representatives hear from a large number of constituents, there is a good chance to turn back the tide of this disturbing trend and preserve the freedom of the Internet. LEM


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Steve Watkins is the Vice President for Information Technology for a mid-sized bank, an attorney, and an Army Reserve JAG on extended active duty. He has been a Mac user for about 12 years. He has owned some PCs along the way - but always came back to the Mac. If you find his articles helpful, please consider making a donation to his tip jar.

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