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Is There an Implied License to Deep Link?
Posted by Ernest Miller on Tuesday, June 11 @ 13:11:46 EDT Copyright
MSNBC notes yet another case (via AP) in which clueless publishers are attempting to stifle deep-linking, this time in Denmark (To link or not to link?).

Like many others, Martin Schwimmer of The Trademark Blog thought that simple technologies that inhibit deep linking would make such cases go away (World Wide Direct Line) [via Ernie the Attorney who agrees]. Unfortunately, the cases have not gone away. Thus, Schwimmer asks, "if link-blocking software is readily available and a website doesn't employ it, does that imply a license to link?"

I have to take exception to this. The idea that there should be a license assumes that the owner of the website has some right to control linking, but that for some undefined reason there would be a rebuttable presumption of an implied license. I imagine this is equivalent to the implied right of publication for "Letters to the Editor." If I write a letter to the editor of a newspaper commenting on an article, I own the copyright in the letter. Yet, simply sending a letter to the editor (without saying "not for publication") gives the editor an implied license to publish the letter. This is reasonable and makes sense. After all, copyright does give the letter-writer the right to control publication of the letter.

However, what right does linking implicate? There is no copyright on URLs, is there? I understand that there may be questions of trademark or unfair competition with regard to framing or inline linking, but how does a simple deep link implicate copyright? We shouldn't move to questions of implied license when there is no right to control use of the information in the first place.

DMOZ, the open directory project, has an excellent resource page on the linking debate (Linking Law), as does the American Library Association (ALA: Deep Linking).

 
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"User's Login" | Login/Create an Account | 11 comments
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Re: Is There an Implied License to Deep Link? (Score: 1)
by greglas on Tuesday, June 11 @ 13:36:12 EDT
(User Info | Send a Message) http://www.chaihana.com/pers.html
You tell 'em, Mr. Miller!

Perhaps we've become so accustomed, post-MAI, to explaining the legalities of normal web-surfing in terms implied licenses, that Mr. Schwimmer lapsed into the mantra.

Although isn't one answer to your question Kelly v. Arriba Soft? (Not endorsing that decision, mind you, but at least you seem to have the Ninth Circuit saying a single deep link can implicate copyright...) And what about Utah Lighthouse? (Not endorsing that one either...)


[ Reply to This ]

Re: Is There an Implied License to Deep Link? (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, June 11 @ 15:57:56 EDT
I recently found a commercial site with a "hyperlink agreement" claiming basically your firstborn if you publish a link to the site. Among other things, they claim that you must link only to the front page, display their logo and notices on the page with the link, not disparage them in any way, etc.

Of course, just because they claim those perogitives doesn't mean they'd be able to enforce them, but it's a reasonably large corporate site, presumably a lawyer advised them that they could get away with posting such an agreement, and it concerns me that we have an environment where a trained corporate lawyer would even consider that as worth the attempt.


[ Reply to This ]

Re: Is There an Implied License to Deep Link? (Score: 1)
by Denise_Howell on Wednesday, June 12 @ 19:20:40 EDT
(User Info | Send a Message) http://bgbg.blogspot.com
Harry Hupp of the Central District of California was headed in this direction back in March, 2000 in the Ticketmaster v. Tickets.com case: "Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. 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." (Emphasis added; GigaLaw has the full text of this non-citable, non-precedential order on motions to dismiss here - as I of course deep-link to it.) In denying a preliminary injunction later on in the case, Judge Hupp put it somewhat differently, observing that URLs per se probably are not protectable: "TM makes the point that copying the URL (the electronic address to the web pages) which is not destroyed, but retained and used, is copying protected material. The court doubts that the material is protectable because the URL appears to contain functional and factual elements only and not original material." (Emphasis added; at GigaLaw again, here.) Judge Hupp looked to the Supreme Court's holding in Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991) to support his "URLs are not protectable" analysis. I've been wondering whether there also is a viable "no actual copying" analysis as suggested by his first ruling. Say, for example, some private party were responsible for generating every street address in the country. You would not be violating that party's copyrights when you published an address in a directory like The Yellow Pages, but that's not because you didn't copy the address; that's because the address is not protectable for reasons like those set forth in Judge Hupp's second order. Perhaps you or your readers have further thoughts about taking the "copying" out of hyperlinking, to borrow from the title of your paper with Ms. Feigenbaum. From a technological standpoint, could one support an argument that "hyperlinking does not itself involve a violation of the Copyright Act . . . since no copying is involved," as Judge Hupp initially put it? Or must one instead take the "Copernican" approach you have suggested - that bare reproduction is not what copyright law should be seeking to protect in the first place?


[ Reply to This ]

Well... (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, June 14 @ 02:55:07 EDT
> I understand that there may be questions of
> trademark or unfair competition with regard
> to framing or inline linking, but how does a
> simple deep link implicate copyright?

The point in the Danish case is that the Newsbooster(? or whatever) is selling subscriptions to compliations of deeplinks to help people get their news faster. (A laudable goal IMHO, most people can't design sites worth beans).

So it is relevant to unfair competition, stealing services, etc. However, I think that the content providers shouldn't complain about not having their logo or advertising displayed. You choose to display or not display that when you write the page. You should write every page so that it is distinctively yours, and brings you revenue....

-- Ender, Duke_of_URL


[ Reply to This ]

Re: Is There an Implied License to Deep Link? (Score: 1)
by Newsbooster on Friday, June 14 @ 10:24:44 EDT
(User Info | Send a Message) http://www.newsbooster.com
For your information:

Newsbooster is accused for 3 main points:

- The Danish Copyright Law (Build on EU-law)
For copying headlines, wich is normaly not a part of the law, but in very special cases they can be, when they have a special/genius.

- The Danish Marketing Act
For making a product (Search Engine) build on the work of Newspapers.

- The Database law
For buliding a database with Headlines + 60 caracters from the News.

Newsbooster strongly belive that we are not breaking any of the above laws.

The closest case you can find is the Duch Kranten-case, were Kranten won because you technological can avoid serch-engines with a robots.text file (very simpel).

If you want to know what Newsbooster does see our Link policy:
http://www.newsbooster.com/?pg=pressinfo7&lan=eng

Regards,
Anders Lautrup-Larsen
CEO Newsbooster.com


[ Reply to This ]


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