USC Annenberg Online Journalism ReviewUSC





Licensed to Link
Buyer Beware: With Linking Comes Liability

Few doubt the significance of being able to add links to Web resources. They enrich the Web experience: sites containing related content can be aggregated, source materials can be documented, and alternative viewpoints disclosed without disrupting the essential flow of content on the page being viewed.

But a number of questions run through your mind when deciding to link to another Web site: For example, does the linked-to site contain accurate information? Is it useful for the reader? Am I asserting something that requires documentation or source citation? Am I crediting the author of the idea, or am I giving a voice to a crackpot?

Answering these questions is never an easy task, but add to the mix the risk of potential legal liability and the task becomes more daunting.

Currently, no other medium offers the same opportunities for content dissection and analysis. When was the last time that a newspaper journalist gave the reader the chance to immediately check out the truth of the author's claims? When was the last time that a brick and mortar merchant asked a customer to compare prices and then gave the customer instant access to the competitor's pricing?

Indeed, the opportunity for immediate content pathology may prove to be the Internet's greatest legacy and its superiority over other media for expression.

In the commercial context, linking sites argue that the link increases traffic to the linked-to site and provides users with additional Web resources. With many sites using traffic counters to determine ad-based revenue, additional traffic means money -- hardly a bad thing.

On the other hand, business interests want to control how and when their sites are viewed. They spend a lot of money each year on corporate image and customer satisfaction. They claim that links from 'seedy' sites are unflattering -- they imply a business connection that doesn't exist -- and worse yet, damage the business's reputation.

If we're going to restrict Web links, we must tread softly. Problems typically arise when a site owner seeks to stop links that the owner deems objectionable. Unfortunately, one person's definition of 'objectionable' often takes root in litigated claims of copyright infringement, trademark infringement, defamation, trespass and unfair competition, thereby inviting the courts to decide when a link is permissible and when it is not.

A recent example puts this all into perspective: Wired magazine's Declan McCullagh has posted an e-mail allegedly from the Better Business Bureau (BBB) to bizmove.com demanding that links from bizmove to the Better Business Bureau Web site be terminated.

According to the text of the BBB email, bizmove's links imply an endorsement or a business relationship that doesn't exist. The email also claims the link infringes upon the bureau's copyrighted Web site materials.

In a telephone conversation with Vicki Doran, assistant general counsel for the Better Business Bureau, she reports that the quoted portion of the email was incomplete and out of context. She relates that the Better Business Bureau is not trying to police the Web to disable all links to its site, but that certain aspects of the link were at issue.

For example, depending upon how the link was accessed from bizmove.com, BBB materials were 'framed' on the site, infringing their copyrights, and also their trademarks appeared. Moreover, a consumer complained about being confused about the bureau's endorsement of bizmove.com.

Because of what Doran described as the 'halo effect' of being associated with the Better Business Bureau, the organization objected since bizmove is not a member, and the nature of the links were deceptive.

Web sites are all over the map on trying to control links. The Better Business Bureau has issued written guidelines for linking to its Web site. American Express, Doran points out, expressly prohibits unauthorized hypertext links. The Washington Post reserves the right to withdraw permission to link to its articles. Underwriters Laboratories (UL) demands prior approval before allowing a link to its site.

So outside of the bizmove.com controversy, demands to terminate links between sites raise important issues for the online community about which links are permissible and which ones should legitimately be stifled.

A URL is considered by many to be nothing more than an address or title for which no copyrights or trademark rights can attach. This seems to be a reasonable interpretation. Facts, names, titles and slogans have long been considered ineligible for copyright protection.

Indeed, if I could claim copyright infringement for every instance of someone putting my address on paper, junk mailers would be in big trouble. Fortunately, that is not the law.

Following the 'address' analogy a little further, it is difficult to see how a URL is anything other than descriptive of the site's location. Few would seriously argue that copying a site address 'copies' content on the site for which copyright protection may be available. [See, e.g. Mai Systems Corp. v. Peak Computer, Inc. (9th Cir.1993) 991 F.2d 511 (loading copyrighted material into RAM is copying for purposes of copyright protection)].

Alternatively, one would expect vigorous fair use and First Amendment defenses to such claims of infringement. Nevertheless, these defenses do not stop site operators from attempting to terminate links they deem objectionable for whatever reason. And unfortunately, the fear of being sued for creating a link may chill the use of legitimate links, and implicates concerns about First Amendment protections. [See e.g., 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. (Southern District of New York, case# 00-cv-0277)]

So when does a link raise legitimate liability concerns, and when does it not? With a few notable exceptions, the answers are less than clear. This article begins the exploration of linking liability by looking at clearly permissible links: express and implied licenses. In future installments, we'll look at links that are not permitted either because of site restrictions or content restrictions.

EXPRESS LICENSE

A license is simply the grant of permission to do something which otherwise could be considered improper or illegal. For example, if I give the paperboy permission to come upon my porch to deliver the newspaper, I can't later complain of trespass.

Many sites contain an express grant of permission, either within the content on the Web page, or contained within the site's terms and conditions of use. So if the owner of a Web site explicitly gives permission to link, there should be no legal liability for the link as against the site owner.

A license is a contract and principles of state contract law govern its interpretation [See e.g., McCoy v. Mitsuboshi Cutlery, Inc. (Fed.Cir.1995) 67 F.3d 917]. Given the meaty choice of law and choice of forum issues that exist with the Internet, it may be wise to address these issues in any written license rather than find yourself drawn into a dispute over the subtleties of contract law in the state the site operator lives.

If a license to link is negotiated, the scope of permission granted will depend upon the wording of the contract. In the contract document, the site owner can set reasonable restrictions on the number of links, commentary about the site, and even the duration of the link.

Authors J. Dianne Brinson and Mark F. Radcliff recommend in their Internet Law and Business Handbook(Ladera Press 2000) that seeking permission to establish a link as the better practice than proceeding without permission. Accompanying the text is a form contract for that purpose.

Undoubtedly most site owners will grant permission when asked. But, this seems to add an unnecessary transaction cost to establishing a link. Imagine the cost in time and effort for a major portal to obtain written permission from each site identified by the search engine. Worse yet, one can only imagine what payment or promises the site owner could demand in exchange for permission to establish a link. Recent press coverage suggests that $50 is in vogue for linking to some Web sites.

IMPLIED LICENSE

An implied license exists where the conduct of the site operator leads one to believe that there is permission to do an act. For example, posting store hours for a business and bracing the door open implies that shoppers are welcome. It can hardly be argued that shoppers should understand otherwise.

Similarly, making a Web page accessible to the public is a strong argument that viewing the page is acceptable and for implying permission to point others to that page. Indeed, if permission to link could not be implied, the Web as we know it, would cease to exist.

Christopher Reed, in Internet Law: Text and Materials (Butterworth's 2000), makes a strong case for the implied license to link. Site owners, he argues, possess the technological means to block links. So presumably, if they find a link objectionable, they have the means to prevent the link from functioning, rather than demanding that the link be taken down.

This article has framed the issues affecting links to other Web resources, and identified two theories for creating permissible links. Other issues, such as framing, deep linking, links to unprotected speech, and vicarious liability will be addressed in future installments.