The Internet, it seems, is a neverending series of rabbit holes called links. Some links are to home pages while others go much deeper. The architects, the linksters, are everywhere. Blogs do it. Google does it. And now Real Estate vertical search engines like Trulia, Propsmart, Property Rover, Streeteasy and others do it. Some ask for permission to link while others do not. So is anyone breaking any laws here? Is it in any way unethical, immoral or fattening? It may be.
The underlying philosophy in favor of deep linking legality is that it’s what the web was designed for–the free sharing of information. Tim Berners-Lee, the scientist credited with inventing the world wide web in 1989, says links are just a digital footnote, a technological finger, if you will, pointing to the source. But unlike fingers that just point, links take you on a magical trip to the source. A Madhatter’s Tea Party.
So long as copyrighted materials are not substantially displayed or income taken away from the linked-to source, United States courts have generally ruled in favor of the legality of linking. The Fair Use Doctrine has usually been a successful defense in infringement suits. No harm, no foul is the fair use creed.
The trend in European courts, on the other hand, is to see linking, especially deep linking, as a form of infringement.
Taking inspiration from those decisions, some US websites have mounted attacks against deep linkers on theories of trespass of their website or economic harm caused by bypassing the home page and its plethora of money making ads. Let’s take a real estate spider, for example. The argument goes something like this—by deep linking to the real estate listing without permission, the spider is taking consumers through the website’s back door where they are missing the opportunity to be sold something at the front door home page. Less ad clicks equals harm to the website. Add to this argument that they have posted a “Do Not Trespass” sign in their Terms of Use and you have a recipe for success. It’s an end around the Copyright Act and the pesky fair use doctrine.
But it’s not only spiders that should beware, its blogs too. Any blogger who deep links can be legally challenged. In the case where a blog takes advertising or is deemed a commercial enterprise, the case against them is stronger and their fair use defense is compromised. Should that blogger quote an entire news article or other copyrighted work, or display a copyrighted photograph, that’s probably illegal. See the 2003 article in USC Online Journalism Review relating to deep linked news stories.
For those of you who can take it straight from a lawyer’s mouth, I refer you to my pick for linking law expert, Mark Sableman, Esq. and his erudite law review article, Linking Law Revisted: Internet Linking Law At Five Years. Published in 2001, it gives an in-depth account of legal theories argued in the various court cases, beginning with the famous 1996 Shetland Times case in Scotland which gave birth to linking law.
I spoke to Mr. Sableman several months ago and he told me that website trepass theories and economic impact of deep linking are the legal theories du jure. He also warned me of the risks associated with obtaining permission. Once permission is granted a contract may be formed. If the linked-to source later decides to withdraw the permission, or the agreement is not renewed, and the linking continues, a breach of contract argument can be raised.
To deep link or not to deep link, that remains the legal question.
