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."
