From: T0Morrow@aol.com
Date: Fri Jan 19 2001 - 14:36:38 MST
I know of no court opinion or statute that would prevent deep linking per se.
You probably face a bluff, and a dumb one at that.
I can imagine a successful claim that relies on a showing that the linking
party *agreed* to not engage in deep linking, said agreement most likely
arising by way of a click-through license on the plaintiff's homepage. But,
of course, if the deep link is not blocked by a CGI script or other self-help
measure, it would be entirely possible to access the page cited without
clicking-through the license. See, eg., Ticketmaster Corp. v. Tickets.com,
Inc., No. CV-99-7654 (C.D. Cal., March 27, 2000) (dismissing as preempted by
copyright law a trespass to chattles claim based on unauthorized
hyperlinking--without clarifying whether public invitation to enter site had
been revoked with regard to defendant--but declining to preempt contract
claim based on same facts); Ticketmaster Corp. v. Tickets.com, Inc., No.
CV-99- 7654 (C.D. Cal., August 10, 2000) (denying motion for preliminary
injunction).
Framing a deep-linked site (or any site, for that matter) may, if done in a
particularly misleading way, give rise to an unfair competition claim. But
you would have to represent another's work as your own to suffer liability
for that practice. See, e.g., Ticketmaster Corp. v. Microsoft Corp. (S.D.
Cal. complaint filed Apr. 28, 1997) (alleging that linking violated
trademarks) (settled--probably because Ticketmaster devised a technical
solution).
Absent that, I can imagine a claim only if the use that results from the
hyperlink somehow harms the site being linked to. See, e.g., E-Bay v.
Bidder's Edge, Inc., No. C-99-21200 RMW (N.D. Cal. May 24, 2000) (applying
trespass to chattles theory to grant preliminary injunction against
unauthorized access by automated web crawlers to publicly available data) .
But will casual readers really slow down a server? Not likely.
It bears noting that a link does not by any stretch constitute a trespass to
a web site. The link itself operates functionally like a footnote in a
paper; it is the browser accessing the linking site that does the work of
pulling up the deep-linked page, just as it remains up to readers of a paper
to hunt down works cited in its footnotes.
If you get unduly hassled about deep-linking, you could simply type the link
as text into your web-document, leaving it to readers to cut-and-paste the
URL into their own browsers. That's a pain to readers, of course, forcing
them to do manually what their browsers would do automatically with a
hyperlink. But attorneys can be pains to deal with, too.
> Does anyone know what the law says about "deep linking". Say you write some
> comments on an article appearing on a magazine's Web page, and you link
> directly to the article. (The article appears in a new browser, exactly as
> it would appear if the viewer had gone there directly.)
>
> What if the magazine sent you a Cease and Desist letter, and told you that
> it did not permitting linking to its content (which is freely open to the
> public), only to its main page?
>
> This sounds ridiculous to me. The magazine would be turning away freely
> given traffic that it would otherwise not receive. What I'm really
> interested in is not so much the silliness of such a policy, but whether
an
> online magazine can legally enforce such a claim. I would think the law
> does *not* support this, but sometimes "the law is an ass", so I'm asking
> the many-brained List if it knows the law in this area.
>
> I can't imagine telling someone, "No, no, I don't permit you to link to
The
> Extropian Principles. You may only link to my home page."
>
> Thanks,
>
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