Linker vs. Lawyer: The Deep Link Controversy Continues

Paul Alan Levy, an attorney for the Public Citizen Litigation Group, squares off with Eric Ward, one of the web's most respected authorities on links and linking.

Is deep linking illegal, as a Danish court recently ruled? Or are there situations where it's OK to link anyway without fear of lawsuits? Paul Alan Levy, an attorney for Ralph Nader's Public Citizen Litigation Group responded in depth to last week's SearchDay article by Eric Ward, "Linking Legalities: What You Need to Know" with a host of interesting points.

Eric, in turn, countered several of Paul's comments. Here are some of the most interesting excerpts from their email dialog on the legal issues surrounding links and linking.

Paul Alan Levy: With due respect to Eric Ward, his advice is not good. Just as you do not need explicit permission to link to someone's web site, the fact that the linked site states that linking is not permitted is just so much fluff.

The NPR (National Public Radio) controversy (links below) is a perfect example. Originally, their policy was, don't link without our express permission. They got a firestorm in response, partly based on the proposition that linkers don't need permission, and partly based on the proposition that it was hypocritical for an entity like NPR to try to prohibit or limit linking. So, they backed down to a face saving formula, which revokes the outright prohibition but tries to set terms.

Now, one may well question whether the terms are enforceable on the theory that someone who links is implicit agreeing to a contract. On the other hand, what they treat as "terms of permission" are really invocations of some of the standards that one finds in copyright or trademark law.

If a linking site is commercial, it may have more difficulty mounting fair use defense, because non-commercial versus commercial use is an important factor in fair use analysis. The use of a link to imply NPR endorsement might well implicate trademark concerns, maybe copyright concerns as well. But, rather than thinking of the "terms of use" in contract terms, perhaps it makes sense to think of them as a warning about enforcement intentions -- if you do it this way, don't worry about whether we will sue you.

Copyright law does not give extra protection to someone who says they don't want their material copied. Either there is a violation of copyright, or there isn't. Either the provision of a deep link is fair use, or it isn't. This sort of web site disclaimer is just plain BS.

In fact, this part of [Ward's article” is diametrically opposed to his other statement, that it is easy for the proprietor of a web site to prevent linking through technical means. The very fact that it is so easy to prevent linking technically can be part of the fair use analysis; if someone has chosen to use meaningless legal verbiage instead of self-activating technical means, that tends to suggests that they don't really care if there is a deep link; and the courts help those who help themselves, no?

Eric Ward: Paul makes great points, and my article was purposely simplistic. But... just because it is technically possible to redirect a deep link doesn't mean that you should have to do so or accept whatever happens because you didn't. So if forget to close my driveway gate that means the kids on our street are welcome to come on in and use the basketball hoop? Implied consent?

But here's an ever larger example of the complexity of the situation.

On a web page, what if instead of making a link I just include a URL but I don't code it with the HTML that makes it a link (the ) tag. Now it isn't link... can't be clicked... it's just some text. To use it the viewer of the page has to copy and paste it into their browser, then click 'go'.

Who's the violator here? The clicker or page author?

Paul Alan Levy: Neither is a violator; links don't violate copyright.

Eric Ward: Let's take it a step further. Some email clients make URLs into links automatically, so the URL below:

wasn't a link when I typed it. It can't be clicked. It's just some text. But the moment you open it in your email program it becomes a link because your email program (Outlook, MS Messenger, Eudora) all make it a link automatically. So now it's a deep link and clickable. Who's the violator here? The sender of the email or the recipient who (egads) unsuspectingly opened an email and now has a deep link in front of them?

Paul Alan Levy: Again, neither is a violator; links don't violate copyright.

I don't give legal advice to institutions to encourage them to figure out ways to prevent linking. On the other hand, it does seem to me to follow from what I said that a company can avoid the need to think about litigation if they solve their problems by technical means. I do think that, by and large, the marketplace of ideas will be the poorer if companies routinely do that. I would urge companies to think long and hard about how important it is to keep the occasional reader from visiting an internal page. Will people link to them less if they know that viewers can only go to the home page? Will they lose visitors that way? Will they get less exposure for those web site ads?

Now, that doesn't mean that when you deep link to someone whose site purports to forbid such linking with verbiage, you might not be buying yourself a exchange of correspondence with their IP lawyers, or even a lawsuit if the web site proprietor has money to burn on a lawsuit that cannot be won.

So, there may be a practical reason not to provide such deep links. But, if for your own reason you think it is important to provide the deep links, and it is worth the possible legal tsouris, (or, if you think being threatened will raise your profile and thus increase your hits!) the verbiage is no reason to refrain.

On the other hand, I agree with Ward that deep linking in a framed context can be legally problematic. I do understand the argument that a company makes, that when you copy my content in a way that appears to make it a part of your web site, without attribution to me, without seeing all the other dreck that I choose to put on my internal page, that this violates my copyright. It seems to me that the courts that have forbidden such activity may well be correct; I certainly have no plan to spend public interest resources defending such conduct.

Paul Alan Levy is an attorney for the Public Citizen Litigation Group specializing in rank-and-file labor law and free speech on the internet. Eric Ward founded the Web's first service for announcing and linking Web sites back in 1994, and he still offers those services today.

Linking Legalities: What You Need to Know
SearchDay, July 10, 2002
http://www.searchenginewatch.com/searchday/02/sd0710-linkalert.html
Powerful interests are threatening anyone creating "deep links" to their web sites. Should you be worried? Eric Ward, a leading authority on web links, cuts through the bluster to pinpoint the important issues.

Deep Linking Lunacy
SearchDay, July 9, 2002
http://www.searchenginewatch.com/searchday/02/sd0710-linkalert.html
A Danish court has ruled that "deep linking" is illegal, and pundits say this decision spells doom for the Net. Should you be worried? Hardly.

Public Protests NPR Link Policy
http://www.wired.com/news/business/0,1367,53355,00.html
When huge, nameless, faceless corporations try to impose "linking policies" upon webmasters who want to point to the company's site, people usually react in a predictable way. The reaction was much the same when webloggers discovered that yet another huge organization is trying to lay down rigid linking guidelines -- only this time the huge organization is National Public Radio.

Linking to the Web site: Irate Bloggers and Other New Ideas
http://www.npr.org/yourturn/ombudsman/index.html
Response to the linking controversy by NPR's Ombudsman, Jeffrey A. Dvorkin.

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