American lawyer Gregory M. Poehler examines the intellectual property ramifications of linking.
Providing a link to another’s website is an extremely common practice among website owners. The practice of linking is so widespread that few companies even consider requesting permission from the owner of a site to which a link is provided. After all, there is seemingly little reason for a site owner to object to such unsolicited advertising and the resultant increased traffic to its site. Nevertheless, there have been cases worldwide in which “linkers” have been found legally liable under various causes of action. For this reason, website owners are cautioned to think before they link.
The Terminology
The most common type of links are known as “hypertext links,” or links that require the viewer to click on the link, which is typically either an image or a piece of text. Hypertext linking is usually deemed beneficial by the owners of the site to which such links are directed due to the increased traffic. The few instances in which site owners have objected involve “deep linking.” A deep link bypasses a site’s home page and directs the user to a page embedded within another site. Because home pages often contain advertising or links to services offered by related companies, the owners of sites that are deep linked may object to this practice due to lost revenue.
The U.S. Courts’ View
As a general rule, linking (whether “deep” or otherwise) is an acceptable practice under United States law, and does not require permission from the site’s owner. Almost all of the complaints filed in the U.S. by site owners against other sites containing deep links have either been dismissed or ended in settlement (in which the “linker” either removes such links or agrees to link to the other site’s home page). The few U.S. courts that have substantively addressed the issue have found that deep linking is generally harmless and that the “linker” is not liable for intellectual property infringement. Such activity apparently does not, for instance, rise to sufficient levels of copying and/or confusion to be prohibited under U.S. trademark or copyright laws. See, e.g., Ticketmaster Corp. v. Tickets.com, Civ. No. 99-7654, WL 1887522 (C.D. Cal. Aug. 10, 2000) (holding that linking — both “deep” and “normal” — was not copyright infringement because no copying was involved); Knight-McConnell v. Cummins, Civ. No. 03-5035, WL 1713824 (S.D.N.Y. July 29, 2004) (“The mere appearance on a website of a hyperlink to another site will not lead a web-user to conclude that the owner of the site he is visiting is associated with the owner of the linked site.”).
Linking is now such a widespread practice in the U.S. that any complaints are exceedingly rare. This being so, provided that one is not changing the content on the “linked-to” page in any way or mischaracterizing the links (i.e., using disparaging text or imagery in the hypertext link), site owners may generally link to other U.S. sites freely without significant fear of liability.
The European View
By contrast, courts in Europe have taken inconsistent positions on the practice of linking. Part of the reason for this policy is that in the European Union, linking is viewed as potentially giving rise to a claim for database right infringement pursuant to the EU Database Directive. See 96/9/EC of 11 March 1986 on the Legal Protection of Databases, 1996 O.J. (L. 77). “Database rights” are not strictly speaking a species of copyright, though a database can still acquire copyright protection (and although database protection issues have typically been handled under copyright law in the United States). Rather, “database rights” as understood in the European Union represent a new and discrete kind of intellectual property right that exists only when there has been investment in obtaining, verifying, or presenting the contents of a database.
Many European courts have considered the new database protection right in the Internet context, with inconsistent results. See, e.g., PCM v. Eureka Internetdiensten (Kranten.com) (Denmark 2002) (finding deep linking legally permissible and thus providing that there is nothing to stop businesses from placing advertisements on web pages within their sites); StepStone GmbH & Co. KG v. Ofir Deutschland GmbH (Germany) (Feb. 2001) (granting injunction against deep linker); British Horse Racing Board v. William Hill Org. Ltd. (U.K.) (2002) (discussing database rights but not in the context of hypertext links); Keljob v. Cadremploi, Court of Appeals, Civ. Ct. Paris (France) (May 25, 2001) (granting injunction against search engine that deep linked to other sites); OLG Hamburg, Federal Court of Justice (Germany) (July 17, 2003) (ruling that linking is not unlawful and does not violate the Database Directive).
Adding to the confusion and the inconsistency is a Danish case decided in July 2002. In that decision, the Danish court in DNPA v. Newsbooster.com ordered an Internet news service to stop its practice of “deep linking” to other sites.
The case before the Danish court stemmed from a complaint against Newsbooster.com by the Danish Newspaper Publishers’ Association (“DNPA”). Newsbooster.com worked much like a search engine, offering “deep links” to specific news stories found on a variety of web sites. Users were able to choose keywords, and Newsbooster would return links to articles matching the request. In its decision, the Danish court concluded that Newsbooster was in direct competition with the newspapers, and that the links provided to the articles within the paper damaged the value of the newspapers’ advertisements.
At this point, it is still unclear what effect the Newsbooster decision has had (or will have). In fact, in an effort to take advantage of European inconsistency with respect to this issue, Newsbooster has recently moved its operations to the U.K. Many European sites continue their practice of linking without receiving prior permission. Given the uncertainty of the positions taken by European courts with respect to the issue of linking, however, it is advisable to avoid “deep” linking to other European sites without the site owner’s consent. The practice of linking, although widespread, can nevertheless lead to liability.
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