Courts ponder legality of ‘deep-linking’

From the Summer 2002 issue of The News Media & The Law, page 31.

By M. Franco Salvoza

Is the future of the ‘Net in jeopardy?

Considering how much the Internet has gained a foothold into some daily lives, it’s unlikely.

However, a Danish court handed down a decision over the summer regarding deep-linking, a variation of one of the Web’s fundamental premises, that may have some ripple effects on the way U.S. courts perceive similar Internet disputes.

“Deep-linking” is computer-speak for posting a link from one Web page to another one deep within another Web site, in effect bypassing a site’s homepage where many of the advertisements are placed and page hits are measured.

The Bailiff’s Court of Copenhagen ruled on July 5 that Newsbooster.com, a search engine that enabled users to collect links and create their own Internet news service for a subscription fee, could not maintain 28 links to Danish newspapers because it created direct competition and harmed the value of the papers’ advertising. The site disagrees with the decision since “it does not in any way define the difference between traditional search engines like Google, Lycos or Fast and Newsbooster.com,” said the site’s CEO Anders Lautrup-Larsen.

The Danish Newspapers Association argued that deep-linking made it “difficult for newspapers to do business.” Newsbooster.com plans to

appeal. In a similar case in Europe, a judge in the Netherlands on June 20 forbade IndymediaNL, an independent news Web site, from posting links to the site for Radikal, a periodical.

The effect on law in the U.S. is hard to evaluate at this early stage since no similar disputes have reached the high courts, but the Danish decision could influence future decisions domestically.

The deep-linking issue has raised eyebrows recently.

Belo, a media company that owns The Dallas Morning News, sent legal threats to Dallas resident Avi S. Adelman, who had deep-linked to the newspaper’s Web site from his community news Web page barkingdogs.org.

“I did nothing wrong,” Adelman said. “It’s called the World Wide Web, not the World Wide Straight Line.”

After getting legal help, Adelman still links to the site.

National Public Radio made headlines by adopting a policy similar to that of The Dallas Morning News by prohibiting deep-linking without the site’s express consent. Even Internet auctioneer Ebay objected when auctionwatch.com used advanced search software leading users to pages deep in its site. However, that dispute ended when the parties signed a licensing agreement.

The law regarding deep-linking in the U.S. has a short history.

One pro-deep-linking decision hit the legal map in 2000 when Ticketmaster sued Tickets.com for deep-linking to material regarding events it promoted.

U.S. District Court Judge Harry Hupp ruled that “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.”

However, in February 2002, a judge of the U.S. Court of Appeals in San Francisco (9th Cir.) found copyright infringement when a photographer sued a search engine for reproducing his images in thumbnail form and using them to link to the original photos.

The court decided that the search engine infringed on the photographer’s rights, since “Arriba actively participated in displaying Kelly’s images by trolling the web, finding Kelly’s images, and then having its program inline link and frame those images within its own web site,” Judge Thomas G. Nelson wrote in the opinion. (Kelly v. Arriba)

The DMCA, or Digital Millennium Copyright Act signed by President Clinton on October 28, 1998, has provisions intended to aid copyright owners fight piracy, but is unclear on the actual practice of deep-linking.

When infringements are found, the link-poster is required to “expeditiously” remove the link. However, deep-linking is not often a clear infringement or appropriation of content.

Similar suits have usually settled out of court before any judges in higher courts could establish any precedent permitting deep-linking. In the absence of any clear law permitting or prohibiting deep-linking, large corporations with deep pockets such as Belo can shut down small, non-profit Web sites with simple cease-and-desist letters and threats of lengthy, expensive litigation.

Runners World magazine sued Web site LetsRun.com in May for linking to the magazine’s content. The site, assembled by non-profit hobbyists, removed the links and briefly called itself “Let’s Run.com — where we have no legal team.”

Policies regarding deep-linking by usually pro-speech news Web sites, for example, vary. Some, like Bloomberg News’ Web site, prohibit it without permission. Some, like the Albuquerque Journal, unsuccessfully charged as much as $50 for a link to their sites.

Washingtonpost.com permits links but retains the right to prohibit them.

“You generally do not need to request reprint permission if you are requesting a text link,” said Caroline Little, chief operating officer for Washington post.Newsweek Interactive. The New York Times on the Web requires registration to access any of its pages.

What exactly is all the fuss about? One might think that deep-linking would be generally encouraged as a way to increase Web traffic by introducing new users and boosting page hits to certain Web sites that otherwise would not be found, and any prohibition of linking would be counterproductive to that. Others say it’s simply ridiculous to forbid links, since it interferes with the essential nature of the Internet.

But that’s not always the case.

Opponents to deep-linking, such as Belo, claim it’s a “free ride” to their Web content. In addition, the advertising that supports the site and the homepage hits, the honey that attracts Web advertisers, get bypassed when Web users go straight to a page deep within the site.

Others claim confusion that a user may not know they are at another site after clicking on the link.

Even the most pro-deep-linking advocates would discourage blatant stealing of content and shameless piggybacking on another Web site, as Danish newspapers alleged Newsbooster.com was guilty of doing.

Even Adelman, who doesn’t charge for his Web site, admits that “making money doing links is not kosher.”

But where is the line drawn on what is acceptable or how many links are permissible? One link? Should the legal line stop at five links, for example? Or should it depend not on the quantity or amount, but rather the quality and substantiality of the material linked to?

The deep-linking debate may be much ado about nothing. The technology exists to block it. By simply requiring registration for access, The New York Times on the Web may have had it right all along.

Either way, expect the deep-linking debate to continue, even though cease-and-desist letters can slow or prevent the practice in a practical, economic way. Stopping something so fundamental on the Internet will be as difficult as trying to prevent users from downloading music files.

But a future high court decision on deep linking could help define the Internet as either a medium of expression and sharing information or just another vehicle for branded interests to make a dollar.