A link takes a user from one website to another by clicking on a link or image. It sounds simple enough – but every website developer should know about links and the law.
Let’s start with some basic definitions of online linking terminology. A link (or hyperlink) is any component of a Web page that connects to another Web page or another portion of the same Web page. Clicking on highlighted text or a graphic image activates most links. For example, a user might click on the words Coca-Cola or an image of a Coke bottle to be transported to the Coca-Cola Company’s home page. A deep link is a hyperlink that bypasses a website’s home page and takes the user directly to an internal page. For example, instead of linking to the home page of a newspaper, a deep link might take the user directly to a newspaper article within the site.
In addition to hyperlinks, framing or inlining can also connect objects. Framing is the process of allowing a user to view the contents of one website while it is framed by information from another site, similar to the “picture-in-picture” feature offered on some televisions. For example, a user of a search engine may view the contents of an online store that is framed by the search engine’s text and logos.
Inlining is the process of displaying a graphic file on one website that originates at another. For example, inlining occurs if a user at site A can, without leaving site A, view a “cartoon of the day” featured on site B.
Links and the Law
Linking is so fundamental to the functioning of the World Wide Web that many users feel that any legal restriction on their use of links is a violation of the right to travel and speak freely in cyberspace. But many businesses who don’t want their valuable content associated with or connected to certain sites are far less enthusiastic about some aspects of linking and have challenged some linking practices under theories of trademark, copyright, defamation, invasion of privacy and other laws. Here, we briefly discuss some of the legal principles that may limit the right to link in some circumstances.
Defamation. A link may defame if its effect is to create an untrue statement that injures the reputation of a person or business.
- EXAMPLE: A student creates a hyperlink titled “Alcoholics on the Net” and links it to a picture of the school principal at another site. The hyperlink is defamatory because it serves as an untrue statement that injures the reputation of the principal within the community.
Invasion of Privacy. A link may violate a person’s reasonable expectation of privacy.
- EXAMPLE: A disgruntled employee of Company A creates a hyperlink titled “Washed Up” that links to a hidden camera in Company A’s executive washroom.
Copyright Infringement. Although it is not a violation of copyright law to create a hyperlink, it is a violation of the law to create a link that contributes to unauthorized copying of a copyrighted work if the linking party knew or had reason to know of the unauthorized copying and encouraged it.
- EXAMPLE: A website posted infringing copies of a church’s copyrighted handbook at its site. The website was ordered to remove the handbook, but subsequently provided links to other sites that contained infringing copies of the handbook. These links were different from traditional hyperlinks because the website knew and encouraged the use of the links to obtain unauthorized copies. The linking activity constituted contributory copyright infringement. Intellectual Reserve, Inc. V. Utah Lighthouse Ministry, Inc. 75 F. Supp. 2d 1290 (D. Utah 1999).
Trademark Infringement and Dilution. A trademark is any name or graphic image that identifies and distinguishes products or services. It can be a word such as “Kodak,” a graphic image such as the “Ask Jeeves” butler, or it can be a combination of elements such as the colors, lettering and special graphics used to distinguish Ebay.com from other online auctions. Here the broad legal rule is that the first user of a mark generally acquires trademark rights. Infringement occurs when a second user of the trademark, or a substantially similar mark, is likely to confuse consumers. In addition, if a trademark is famous, such as Amazon.com or America Online, the owner can stop others from using it in a way that tarnishes the mark’s reputation.
The use of a graphic trademark – for example the Playboy bunny logo – when linked to the trademark owner’s site is sometimes a risky proposition. Unlike the use of a simple word link, a consumer is more likely to be confused into believing that the linked site is associated with or endorses the site that owns the graphical trademark.
- EXAMPLE: An X-rated website used the Playboy name and bunny logo to link to the Playboy website. Playboy sued and proved that users of the site may be confused as to whether Playboy sponsored or endorsed the adult site. Playboy also proved that its trademarks would be blurred or tarnished by the association with the adult site. Playboy Enterprises, Inc. v. Universal Tel-A-Talk Inc., 1998 U.S. Dist. LEXIS 17282 (E.D. Pa. 1998).
In addition to these legal theories, other legal attacks on linking practices have been based upon false advertising, unfair competition, breach of contract and disparagement. False advertising occurs when a misleading statement about a product or service deceives the public. Unfair competition refers to a group of a state and federal laws that prohibit unethical behavior by businesses. A breach of contract may occur if users agree to contractual limitations when using a website, and then create links in violation of those terms. Disparagement occurs when a link creates a false statement that interferes with a company’s business relations.
As discussed earlier, deep linking allows visitors to bypass information and advertisements at the home page and go directly to an internal page. As a result, sites can lose income because their revenues are often tied to the number of viewers who pass through their home page. Some businesses also dislike the practice because bypassing the homepage may mistakenly create the impression in a user’s mind that the two linked sites are associated or endorse each other. For example, an appliance manufacturer’s website may link to an internal Web page of a nonprofit consumer reviewing agency. The user may read a positive review of a specific appliance but may bypass a home page that indicates that all such appliances are built abroad using prison labor.
There is no law prohibiting deep links and few reported cases dealing with the subject. But in one case decided in March 2000, a federal court ruled that the use of deep links did not violate copyright law and analogized the process to using a library’s card index to get referrals to particular items. In this case, Tickets.com, an online ticket service provided deep links to Ticketmaster pages to provide users with certain ticket purchases. Tickets.com prefaced the link by stating “These tickets are sold by another ticketing company. Although we can’t sell them to you, the link above will take you directly to the other company’s web site where you can purchase them.” This disclaimer eliminated the claim of unfair competition as well because there was no confusion as to the source of the ticket purchase. The court in this case did leave open the possibility that deep linking may be a breach of contract if the links violated the terms of assent for using the site. Ticketmaster Corp. v. Tickets.Com, Inc. C.D. Calif. No. 99-7654 HLH (BQRx) (March 27, 2000).
Although copyright law may not be violated by these types of deep links, some businesses have attempted to stop the practice of deep linking by using legal theories such as unfair competition, trademark infringement and false advertising. For example, in a 1997 court decision also dealing with online ticket sales, a Microsoft sponsored website, MSN Sidewalk, used deep links to access ordering information at a Ticketmaster website, bypassing the Ticketmaster home page and advertising. Ticketmaster sued Microsoft under theories of trademark dilution and unfair competition and the parties eventually reached a confidential settlement. In an example of how competitors can become partners, Microsoft later sold the entertainment portion of Sidewalk to Ticketmaster.
Framing may trigger a dispute under copyright and trademark law theories because a framed site arguably alters the appearance of the content and creates the impression that its owner endorses or voluntarily chooses to associate with the framer. In a 1997 lawsuit, TotalNEWS framed news content from media outlets such as CNN, USA Today and Time. For example, the content of a CNN Web page appeared within a frame packed with advertising and information about TotalNEWS. The lawsuit settled and TotalNEWS agreed to stop framing and to only use text-only links.
A subsequent court fight involving two dental websites also failed to fully resolve the issue. Applied Anagramic, Inc., a dental services website, framed the content of a competing site. The frames included information about Applied Anagramic as well as its trademark and links to all of its Web pages. A district court ruled that a website containing a link that reproduced Web pages within a “frame” may constitute an infringing derivative work. The court reasoned that the addition of the frame modified the appearance of the linked site and such modifications could, without authorization, amount to infringement. Futuredontics Inc. v. Applied Anagramic Inc., 1997 46 USPQ 2d 2005 (C.D. Calif. 1997)
IMG links – a special type of programming HTML link – can be used to display graphic files one site that are stored on another. In one case, Dan Wallach, a fan of the Dilbert comic strip, did not like the design of the official Dilbert site owned by United Media and designed his own, The Dilbert Hack Page. He used IMG links to display the cartoon images from the United Media site so that a visitor to the Dilbert Hack Page viewed Dilbert cartoons (inlined from the United Media Page) within Wallach’s “improved” page design. United Media demanded that Wallach stop because the display violated copyright law and the process could destroy the integrity of the comic strip (if for example, the strip were displayed at an adult or racist site). The parties avoided a lawsuit when Wallach agreed to drop the IMG links, and used traditional hypertext links to the United Media home page.
Limiting Liability With Disclaimers
If a website owner is concerned about liability for links but is unable or unwilling to seek permission from the linkee, a prominently placed disclaimer may reduce the likelihood of legal problems. A disclaimer is a statement denying an endorsement or waiving liability for a potentially unauthorized activity. A disclaimer is rarely a cure-all for legal claims, but if a disclaimer is prominently displayed and clearly written, a court may take it into consideration as a factor limiting damages. In some cases, such as trademark disputes, it may help prevent any liability. For example, in a case involving a dispute between two websites for restaurants named Blue Note, one factor that helped the lesser-known restaurant avoid liability was a prominently displayed disclaimer stating that it was not affiliated with the more famous restaurant. Benusan Restaurant v. King, 937 F. Supp. 295 (S.D. NY 1996). To minimize liability for any activities that occur when a visitor is taken to a linked website, a webmaster may want to include a linking disclaimer on its home page or on any pages with otherwise troublesome links.
The simplest method of avoiding linking problems is to seek permission. As a general rule, permission is never required for a hyperlink that uses highlighted text (a text link). For example, highlighting the word “Yahoo!” as a link to the Yahoo! home page does not require authorization and will not cause a dispute. But since the following types of links may cause disputes, it makes sense to ask for permission:
- deep links that bypass a linked site’s home page
- links that result in framing
- IMG links that pull only certain elements from a site (such as an image), and
- graphic links comprised of trademarks from the linked site.
Knowing that, realistically, only a small number of these links will ever lead to problems, many businesses choose to ignore the possibility of legal trouble. But others take a conservative approach and when in doubt, seek permission to link – often called a “linking agreement.” A linking agreement can be oral or it can be informal – for example, an email authorization stating, “You have permission to link to our website’s home page using the words [insert the words in the link].” However, especially when deep linking or use of graphic trademarks is involved, many Internet companies prefer more formal written agreements detailing the length of time and the elements of the link.