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Linking Laws

Q: Is asking permission to link to a URL a matter of "netiquette", or is their any legal basis for it? Do I have to remove a link to a URL if requested and why?
[Ken Showalter]

  • Theoretically, it's proper netiquette to ask for permission to link to a site or a part of a site, but practically this is impossible. There have been a few well publicized cases of companies denying others the right to link (e.g., Ticketmaster -- Microsoft Sidewalk) but in general, (although I’m not an attorney) linking without asking permission is considered totally acceptable (and vital if the web is to prosper).

    Also, a recent CNET feature on legal issues addresses the linking problem.

    CNET points out that nothing has really been decided yet on this issue by the courts, although a number of cases are pending. Legally, no one really knows how this will turn out, but if courts/legislatures follow common netiquette we'll hopefully see guidelines that allow most types of linking without permission (yet still protect the intellectual property of the "owner").

  • Besides being an issue of "netiquette" there are two major categories of legal issues in linking to other websites: Trademarks and Copyrights.

    TRADEMARKS

    The recent Ticketmaster vs. Microsoft lawsuit alleges a trademark infringement, because a link on Microsoft's website uses the registered "Ticketmaster" service mark and/or other trademarks or service marks. The link connected to internal pages of the Ticketmaster website, thus bypassing the ads on the main page that Ticketmaster wanted its users to see. Also, Ticketmaster had established a partnership with a Microsoft competitor to provide this information. Realistically, these are the reasons they were upset. As you note, most webmasters are delighted if others link to their site. However, there are exceptions to that rule, as you and Microsoft have discovered.

    The question in the Ticketmaster suit is whether a link that uses a company, product, or service name is a trademark infringement. It will be some time, if ever, before we see a decision in that case. Meanwhile, some webmasters are avoiding the use of trademarks and service marks in links. Another idea is to identify trademarks in links, and attribute their ownership to the other company, the way folks do in print advertisements that refer to other companies' brand names. For example: "Click here for information about the PENTIUM (TM) from the Intel (TM) website - PENTIUM (TM) and Intel (TM) are trademarks of Intel Corporation."

    COPYRIGHTS

    If a link uses text from a copyrighted website (such as the "description" meta tag), it's possible that the site owner could assert that this use is an unauthorized and unlawful copying of their material. As a practical matter, again, most website publishers are delighted when others generate traffic to their site, but copyright law offers another avenue for challenging a link, if, for whatever reason, the site owner doesn't want to be linked.

    It is my impression that most of the "spiders" in use by the big search engines limit indexing to the submitted website. That seems like a fairly safe procedure, since by submitting the site's URL, the webmaster is giving implied permission for any copying inherent in the indexing process. That implied permission doesn't exist in your case.

    Minimal copying incidental to linking might be a "fair use" under copyright law, but the potential application of fair use doctrine is extremely limited in cases where the material is being sold. Thus, that defense is far from a sure thing.

    CONCLUSION

    I don't know of any decided court cases on these issues yet, so there are no definite answers. My personal feeling is that there's nothing wrong with inserting a link BY ITSELF without advance permission. However, company and brand names, and company website text and meta tags are theirs to control. If you use a company's name or any information copied from the company's page, the company might be able to object under trademark or copyright laws, depending on the nature of your use. Again, there are no definite answers; courts may not agree with my view of how existing laws should be applied on the web.
    [Evan R. Smith, www.sixbey.com]

    Note: "This communication is intended to provide general legal information, but does not provide complete legal advice and does not establish an attorney-client relationship. To avoid loss of rights or liability, you should promptly select an attorney and establish an attorney-client relationship to determine how the law applies to your specific situation."

 

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