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.
