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Impermissible Links
Part Two on the Legalities of Linking

One of the most useful and functional aspects of the Internet is the ability to click on a link and be instantaneously transported to another Web site. The mechanism for this transport is a hyperlink created by inserting the linked site's URL into the HTML code on the Web page being viewed. By clicking on the link, the browser adopts the embedded URL, and takes the user to the linked page. Broadband technology makes the transfer nearly seamless.

Serious legal issues remain about whether linking without permission will be tolerated or provoke litigation. In a prior discussion, I identified express and implied licenses as being fair game for avoiding liability in most instances. However, there are three other scenarios that are likely to provoke 'cease & desist' letters: (1) links used to unfairly compete with another's business; (2) links that infringe another's copyrights; and, (3) links to defeat copyright anti-circumvention technology. This column looks at these 'impermissible' links.

Unfair Competition Claims

Unfair competition at common law typically meant that a business competitor was 'passing off' his goods as those of another's. Passing off was prevalent a hundred years ago, and continues today. However, many states have codified their unfair competition laws, broadening their scope and application. For example, in California, unfair competition reaches any business act or practice that can be labeled as 'unlawful, unfair, or fraudulent.' Cal. Bus. & Prof. Code ?17200. This goes far beyond the common law tort of yesteryear, and encompasses nearly anything that can be called 'unfair,' 'immoral,' 'oppressive,' 'unscrupulous,' or 'injurious' to consumers. See, e.g., Allegro v. State Farm Fire & Cas. (1996) 53 Cal.Rptr.2d 229.

Applied to links, unfair competition claims are usually made alleging that the link creates the impression of a business relationship or endorsement between the 'linked-from' site and the 'linked-to' site. Indeed, this is in part the objection of the Better Business Bureau to Bizmove.com's use of its logo discussed in the earlier column.

A second potential unfair competition claim involves so-called 'deep links' which by-pass the site's front page. Advertising revenue generated by 'hits' on the first page is lost, and the user is led away from the site's navigational pane which the site owner argues is critical to a successful user experience. If the user is disappointed in the performance or appearance of the Web page viewed from a deep link, the user may leave with a negative perception of the business and never return to the site.

Unfortunately, there is little guidance in the case law from which the risks of liability can be assessed for these claims. Cases which generated interest such as Ticketmaster v. Tickets.com (Case No. 99-7654 HLH C.D. Cal.) and Ticketmaster v. Microsoft Corp. (Case No. 97-3055 DDP C.D. Cal.) have been settled. And, there are many factors which go into a decision to file suit, including the likelihood of success, the costs to get there, and the ability to prove damages. For example, in Kelly v. Arriba Soft. Corp. (C.D. Cal. 1999) 77 F.Supp.2d 1116, the court found that the plaintiff had failed to show sufficient proof of damages from the lost ad revenue to prevail.

Copyright Infringement Claims

Links which adopt whole cloth the content from another site are impermissible, just as republishing someone else's work would be. While a URL does not appear to copy, some sites have gone beyond the URL, framing another site's material, logo, or artwork. See, e.g., Washington Post v. TotalNews, Inc. Case No. 97-1190. Although later settled, the TotalNews case demonstrates that copying content on a Web site is going to provoke a similar reaction as the making and distributing of a photocopy of copyright protected material.

Links to Anti-Circumvention Technology

In the leading case on anti-circumvention technology, Universal City Studios, Inc. v. Reimerdes (SDNY 2000) 82 F.Supp.2d 211; 111 F.Supp.2d 294 (appeal pending) (Slip opinions available in pdf at CourtWeb. Search in the Southern District of New York for case 00-cv-0277, as ruled by Judge Lewis Kaplan.), U.S. District Court Judge Lewis A. Kaplan of the Southern District of New York determined that a permanent injunction was warranted under the Digital Millennium Copyright Act to prevent the distribution of DeCSS. DeCSS is a program which allows users to decode the Content Scramble System (CSS) which ordinarily prevents unauthorized copying of DVDs. Oral arguments were heard by the court of appeals earlier this month. However, the lower court holding is illustrative of the risks of linking to anti-circumvention technology, and the fact that journalists and others may be caught in the web of liability when linking.

By way of background, under ?1201(a)(2) of the DMCA, trafficking in technology that is primarily designed to circumvent technology that controls access to a copyrighted work is prohibited. 'Trafficking' is broadly defined and applied in most instances. According to the Reimerdes court, since the purpose of DeCSS seeks to get around the CSS, it ran afoul of the DMCA. Under this analysis, prohibited are links to sites that automatically commence downloading DeCSS upon transfer by hyperlink and links to sites that only allowed the user a 'yes-no' decision to download DeCSS.

What many consider to be an aberration, Judge Kaplan found that traditional first amendment protections do not apply to DeCSS. For example, a journalist writing about the case who provides a link to a site containing DeCSS, may also be engaged in the trafficking prohibited by the injunction, and subject to suit, if not liability.

In getting around the First Amendment challenge, Judge Kaplan analogized linking to circumvention technology as being similar to links to defamatory materials. He wrote, 'the solution to the problem is the same [as in defamation cases]: the adoption of a standard of culpability sufficiently high to immunize the activity, whether it is publishing a newspaper or linking, except in cases in which the conduct in question has little or no redeeming constitutional value.' Slip opn. at 78.

The court went on to fashion the following test to determine linking liability: 'absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.' Slip opn. at. p.79.

In other words, if the linking site is aware of the 'bad content' on the other site, and chooses to link anyway, it does so at its peril. The lesson for journalists is beware: a newsworthy event that is otherwise reportable, might be subject to legal liability for providing the link as part of the story.

In an interview with David Greene, Esq., one of the attorneys for the journalists-amici involved with the case, he notes that Judge Kaplan's analogy to defamation is inaccurate. Restrictions on defamation are justified because the statements themselves are harmful. Here, links alone, are not. He feels that rather than fearing the power of journalists to create links, that power should instead be celebrated.

As noted above, the court of appeals in Reimerdes heard oral arguments earlier this month. Watch this column in the coming weeks for a report on the court of appeals' decision.

The Future of Linking Liabilities

Linking is critical to the success of the Internet as we know it. However, the importance of linking to the online community may never reach a reasonable decision by the courts. Why? Because litigants are interested advocates, who may not want the court to fully understand the implications of the technology. Thus, when the technology outstrips most peoples' ability to understand and appreciate it, how can we expect the courts to do more than react with piece-meal and inconsistent results when their information comes from the litigants before it?

Undoubtedly mistakes and misunderstandings of linking will continue to inform and persuade. And, while this view may be cynical, it has considerable support when dealing with the application of law to new technologies. Ithiel de Sola Pool put it so eloquently in his seminal work, Technologies of Freedom, (Harvard University Press: 1983, p.7): 'Each new advance in the technology of communications disturbs a status quo. . . Technical laymen, such as judges, perceive the new technology in [its] early clumsy form, which then becomes their image of its nature, possibilities, and use. This perception is an incubus on later understanding.'