Hyperlinking has been called "the very essence of the Internet," and it is unarguably what makes the World Wide Web unique in its exchange of information. The idea that Web site information is public leads to the belief by many that no one should interfere with the Web's free flow of information. Microsoft even used this concept in their defense in a recent lawsuit, claiming that the plaintiff "breached an unwritten Internet code in which any Web site operator has the right to link to anyone else's site."
There is no decided case law in the area of deep linking, although there have been several high profile cases settled out of court and a recent partial decision in one large case. The legal implications of court rulings could be enormous. Even search engines could be affected, as nearly all of them, such as Yahoo, Alta Vista, Lycos, etc., base their operations on a form of deep linking. Their function could be severely restricted by blanket legislation (some of which has been proposed by the current Congress) or bad litigation results in deep linking cases.
Shetland Times vs. Shetland News
The first deep linking case was filed in 1996 in Scotland, involving The Shetland Times , a newspaper and The Shetland News, a news delivery Web site. The News posted headlines from the Times, using actual Times headlines as the text of the hypertext link. For example, one such link on the Shetland News home page was "New Prime Minister Elected," which linked directly to a story in the Shetland Times with the exact same headline. This 3was not the only complaint. The links also bypassed the Shetland Times home page which carried large volumes of advertising.
Status: In October, 1996, Scotland's Court of Session banned the links, "finding it plausible that a headline is a literary work and that the News's practice of incorporating the Times's headlines verbatim in its link lines violated the latter's copyright" (Kaplan). The Scottish Court did not rule on the matter of deep linking.
Ticketmaster vs. Microsoft
In April, 1997, Ticketmaster filed a complaint in federal court in the Central District of California alleging that "Microsoft's actions diluted their trademarks; created a false, deceptive and misleading representation that there was a formal relationship between the two of them; constituted unfair competition and business practices; and constituted a commercial misuse of their trademarks."
Microsoft at that time operated Sidewalk, a recreational and cultural guide Web site. What Microsoft was doing was simple -- if a Sidewalk user wanted to buy a ticket to a particular event mentioned on the site, Sidewalk offered them a link to Ticketmaster's ticket purchase page. They were actually promoting Ticketmaster sales and sending them customers. So, why would Ticketmaster complain about increased business traffic? Their gripe was that the link took the user directly to the event page, bypassing the advertising and other proprietary information on their home page. They apparently lost focus of the fact that Microsoft was sending them thousands of customers.
A month after the suit was filed, Ticketmaster blocked Sidewalk users from their site. Links set up from Sidewalk then took users to a Ticketmaster page that read, "This is an unauthorized link and a dead end for Sidewalk."
Status: In February of 1999, the 2-year-old lawsuit was settled out of court. "They settled on mutually agreeable terms," said Microsoft corporate spokesman Tom Pilla. Details of the settlement were not made public, but the deep links were removed, directing Sidewalk users to the Ticketmaster homepage.
Ticketmaster vs. Tickets.com
Ticketmaster uses its Web site to sell tickets for events to its customers and so does Tickets.com. But, Tickets.com also lists information about tickets available from other sources. Tickets.com even explains on their website: "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." That's where this controversy begins.
Ticketmaster claimed that when Tickets.com transferred a customer to a Web page deep within their site, it caused the customer to bypass the Ticketmaster home page. What's the big deal with that? One might think they would be glad to get more business. They're not! Because they have ads on their home page and advertisers pay a lot of money to be seen there, they feel that deep linking interferes with their ability to raise revenue. Ticketmaster believes that deep linking is legally wrong because it violates sections of the terms and conditions' at the bottom of their home page.
Status: In April, 2000, Federal Judge Harry L. Hupp obviously disagreed with Ticketmaster on several claims, ruling in favor of Tickets.com by dismissing four counts of the portion of the suit involving deep linking. In his ruling he states that, "...hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular, genuine Web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently." He further states, "It cannot be said that merely putting the terms and conditions in this fashion necessarily creates a contract with anyone using the web site."
The Universal Studios/Movie-List controversy, while also a deep linking case, was a bit different in nature. Movie-List , a collection of links to over 900 movie trailers, was deep linking to trailers within the Universal Web site. Originally, they were actually running the trailers, which were the property of Universal Studios, on the Movie-List server. Not only were they deep linking to trailers, Movie-List was also selling CD-ROMS with trailers they had downloaded. When Universal sent a cease and desist order, they removed the trailers from their server, instead deep linking directly to them on Universal's server, along with trailers on some popular movie fan sites like Hollywood.com, which has permission from Universal to post trailers. The way the Movie-List site was set up, only the URL indicated that the trailer actually belonged to Universal. As far as the average surfer would notice, the trailers seemed to be running on Movie-List's site. Universal then sent them a second cease and desist, stating, "You are not permitted to link to other sites that contain our copyrighted material without our authorization. Accordingly, you must remove all images from our films as well as links to other sites that have our servers."
Status: All trailers have been
removed from the Movie-List server, and the owner no longer sells the CD-ROMS.
He has removed all of the deep linking to Universal pages, however,
he has restored some links to Universal's main site. Movie-List is now under
fire from Hollywood.com who is ordering that he remove deep linking to their
Other deep linking cases that you may want to review include:
The Link Controversy Page has links to news stories and synopses of each of these suits.