The Politics of Web Linking
by Guest Blogger, 3/12/2002
The simple fact is that what we know as the World Wide Web would not be
possible without them. But sometimes their ability to connect both related and
disparate content and information sources are blocked by complicated legal
issues, as evidenced by Byron Petersen's article, "To Link or Not to Link?: That Is
One Complex Question," in the 6/19/00 edition of Content Spotlight.
Petersen, a lawyer and law school professor, addresses the legality of "deep linking"
(the practice of posting a URL on one's website that links directly to content on
another unrelated or unaffiliated website, rather than the home page of an outside
website) and "inline linking" (posting the content of an outside site's URL within the
content or frame of a web page without attribution of the outside page or content
source) including a URL that points to the results of a search engine query.
It seems that while linking may be integral to the Web, it does matter who or what
you link to.
In the early days of the Web, if a for-profit entity discovered a group engaged in either
deep or inline linking, standard practice used to involve the entity being linked to
"politely" asking the group in question to either drop the link, ascribe a specified
attribution, or to simply ask for permission to do so. Recently, however, companies
have begun to aggressively pursue what they consider to be harmful violations of
protected online content and identity. For example:
- According to Fall 1999 articles in PC World and USA Today, auction site eBay responded to companies such as AuctionWatch.com and BiddersEdge, Internet auction clearinghouses that let users search multiple auction sites simultaneously, by invoking technological approaches and legal action to prevent links to its database of auctions from being listed beside the results from other auction sites. Just this May, a federal court in California found that eBay has a basis for its legal action against BiddersEdge under California copyright law, and ruled against BiddersEdge's claims that its operations did not disrupt eBay's site, finding that BiddersEdge "…deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property." (citation courtesy of Wired Magazine online) An injunction was issued against BiddersEdge to not include eBay's content. While this trial won't occur until 2001, BiddersEdge has also issued an antitrust suit against eBay. As a side note, AuctionWatch.com and eBay recently signed an agreement allowing AuctionWatch.com users to search for eBay auction items. And BiddersEdge this month agreed to begin providing users with a link to follow to eBay's search engine rather than providing search capabilities to eBay's auction content.
- Last year, we discussed a which detailed the legal battle between Movie-List, an Ottawa, Canada-based website that features promotional trailers for movie, and the website for Universal Studios, which issued a "cease and desist" letter to Movie-List, a website that provides links to online movie trailers provided by the studios through their own sites. While the trailer links were pointing to other servers, the only clue to the identity of the content source was the URLs that appeared in a browser's location window. Movie-List continues to operate as normal to this date.
- According to a February 1999 Wired article, Ticketmaster and Microsoft settled a two-year lawsuit concerning how the then Microsoft-owned Sidewalk city guide site linked to Tickmaster's ticket vending site. Ticketmaster charged that Microsoft created an entry point into Ticketmaster's online ticket ordering pages for certain events, in effect, offering a comparable service by bypassing its proprietary. Ticketmaster's concern was that by picking off select content for its own service, Microsoft's Sidewalk was reducing the value of its content. Viewers may have missed banner ads and content for which Ticketmaster either charged other vendors or spent money developing to promote their service. Microsoft at the time claimed that given the open nature of the Internet and the guarantees of free speech under the First Amendment, it could link to any web site. It also said that Ticketmaster should welcome any additional traffic directed to its site, as people are more prone to visiting the home page of a site they jump to. Microsoft settled out of court, and ultimately agreed to link only to Ticketmaster's home page, and not directly to any of its content.
- Petersen points to a second Ticketmaster case, this one brought against Tickets.com in a California federal district court. The Court refused Tickets.com's move to dismiss Ticketmaster's charges, but more significantly issued a preliminary ruling that clearly stated its view that linking is not a violation of copyright law, even if other are present, such as business interference and unfair competition issues. In other words, a copyright violation with respect to linking occurs when someone makes a copy of, not a reference to, information. Thus, the Court ruled, the referring site does not have license to maintain a copy of the content for it's own commercial use. More importantly, according to Petersen, no case law or law review article is cited in this opinion, and it is only binding in the Central District of California Federal Court, so at best, it only offers guidance to other jurisdictions in the US.
- Then there was the Los Angeles Times' case against the FreeRepublic.com (yup, you guessed it, filed in California), where Petersen notes the Court considered the legality of an online bulletin board that contained content copied from another site such that subscribers could debate the articles. Neither side questioned whether FreeRepublic.com knowingly violated copyright law, but they disagreed on the issue of whether "fair use" exceptions were applicable (fair use allows portions of copyrighted material to be copied as a part of other content like a review or editorial). The Court's issued a summary judgment (this is a decision made strictly on the basis of evidence and statements presented for the record without a trial when neither party disputes the facts of the case, and the court rules that a party is entitled to a judgment under the rule of law).
- Microsoft filed its own suit earlier this year against Slashdot, an online discussion portal for
technology in what is arguably one of the most complex linking issue so far. In brief, Slashdot
featured 11 posts critical of one feature of the Windows 2000 operating system, namely it's modified
extensions to a security standard known as Kerberos, developed at MIT (with U.S. taxpayer dollars),
and generally accepted as an international standard for computer security on a wide range of systems.
The modifications had the effect of making sure that networks running both UNIX and Windows on
their servers would only be protected via the Windows 2000 server, in essence, raising compatability
concerns with respect to other systems. Microsoft considered its modifications a trade secret, yet made
the modifications available on a publicly accessible website, open to people who clicked on a button below
an end-user agreement stating acknowledgement of the trade secret.
This past May, someone anonymously posted the Microsoft extensions to the Kerberos specifications on
the Slashdot discussion site, generating quite a bit of discussion. Less than a week later, the site owners
issued a warning to remove the posts, including the links to unauthorized copies of the specifications and
instructions on how to bypass the end user license agreement. If any of this sounds familiar, you might recall
our the Uniform Computer Information Transaction Act (UCITA), an effort at drafting model national
computer software licensing rule that would:
- allow software companies to prevent anybody from ever publishing any critical reviews of their products;
- offer protection from lawsuits to software publishers who knowingly distribute software with bugs, even if they hide the knowledge from users who suffer major damage as a result;
- outlaw all forms of reverse engineering, even when performed to make the software work with an existing system or to develop a more stable product;
- create less uniformity of law with international software agreements, particularly regarding electronic commerce and the Internet
- As an example of what this could lead to, McCullagh cites the lawsuit filed by Intellectual Reserve against Utah Lighthouse Ministries. Intellectual Reserve owns the copyright to the Church of Jesus Christ of Latter Day Saints' (LDS) Church Handbook, links to which Utah Lighthouse Ministries, a religious nonprofit organization founded by former LDS members critical of the church, provided direct links. In December 1999, a Utah federal judge granted a preliminary injunction against the Utah Lighthouse, preventing them not only from posting the copyrighted material on their site, but also posting links to other sites they know contain the same content.
- In June 1999, the Church of Scientology arguably became one of the first entities to use DMCA to force an ISP not only to stop anonymous verbatim postings of the Church's doctrine to a discussion website, an act that it considered in violation of its copyright, but also to subpoena the ISP (in this case AT&T WorldNet) to reveal the identity of the anonymous poster. AT&T promptly released the identity of the poster to the Church. For background on this case, check out Polly Sprenger's June 1999 Wired Magazine articles.
- And if all the above weren't enough, the specter of "deep linking" manifests itself in even campaigns for elected office, according to Manny Frishberg's June 15 Wired magazine article. Frishberg detailed the website antics between Washington state Democrat Maria Cantwell and U.S. Senator Republican Slade Gorton race for Gorton's seat. Gorton's site featured a picture of the senator with an environmental protestor dressed like a fish. Cantwell's web team added an inline link to that picture on her site. When they discovered this, the Gorton web team switched the image source file with a more flattering picture of the senator, which was automatically updated on the Cantwell site. It would have been harmless enough, except that Gorton's campaign staff described the Cantwell team's activity as hacking. By the way, Cantwell is a vice president at Real Networks (of RealPlayer/RealJukebox fame), and Gorton's constituency includes Microsoft, and both have taken to accusing the other of lack of knowledge around Internet privacy and intellectual property issues.
