Hypertext Linking and Copyright Issues
A hyperlink, short for hypertext link, is a pointer embedded into a Web page that allows users to navigate to an online document specified by the web designer. Simply by "clicking" on one of these links, a person reading one online page can instantly call up an entirely different page without having to go through the process of locating and entering Web addresses.
Hyperlinks are one of the Web's most powerful tools because they allow Web designers to offer users easy access to relevant information available online. A hyperlink can be used to connect readers to other pages within a Web site, or to pages from other sites. Web users have found that links are excellent research aids, and librarians have taken advantage of their usefulness by creating Web pages whose main features are to provide links to commonly used online resources. These "pathfinder" sites are an important feature of online librarianship because they help users navigate the often-confusing array of research material available on the Web.
Another example of linking is 'direct linking', sometimes referred to 'inline linking' or 'embedded linking'. With direct linking, web site designers place items, such as music, pictures or movies, from other websites onto their own using HTML code. In this case, the embedded item appears on the webpage, whether the creator of the content intends for it to be used in that context or not. The web master does not create a copy of the object and place it on their server. Rather, because of the nature of the protocols of the Internet, the bandwidth is charged to the website where the content originally appears. For example, Joe Webmaster likes a movie on a websitemovie.com. He places the movie onto his website and it plays whenever it is loaded, and the bandwidth necessary to transmit the movie is charged to websitemovie.com. In some cases, such as Flickr or YouTube, the website encourages users to use this form of direct linking. In others, it is considered inappropriate or a potential violation of copyright. Since no copy is made, this creates an interesting grey area of whether or not this is a copyright violation.
While links are useful and perhaps an essential element of Web design, there have been some questions raised concerning the appropriate uses of online links. The two main issues have been around a practice called "deep linking" and around sites that provide links to material that allegedly infringes on a complaining party's rights in some other way.
"Deep linking" is the practice of providing links to interior pages within a Web site without directing people using the link through the host site's main page. Some site owners see deep linking as problematic because it takes control over the viewer's experience away from them and may create confusion over whose site is whose. For sites with commercial advertising or subscriptions, for example, deep linking may mean users get to see the content of the site without having to "pay" for the information by first accessing advertisements placed on a welcome page or by paying for the subscription. Other people see linking as a necessary part of Web design and argue that deep links actually provide a service by steering users to the linked sites.
For some, deep linking is a question of etiquette (is it "polite" to deep link to another site?), for others it is a question of law. Ticketron raised the ticket seller's objections to other companies deep linking to internal areas of its Web site where it sells tickets online. Ticketron argued that the particular cases of deep linking infringed on its business interests and devalued its services. In one of the suits, Ticketron objected to the Microsoft Corporation deep linking to a section of its site and, in effect, obtaining for free a service for which other company's paid Ticketron. Microsoft settled out of court with Ticketron in 1999, agreeing to cease the practice of creating links from its Sidewalk city sites to pages deep within the Ticketron site.
In a later Ticketmaster suit against Tickets.com, however, a U.S. District Judge ruled in March 2000 that hypertext links do not constitute copyright infringement because no copy is actually created in the process of linking (Ticketmaster Corp, v. Tickets.com, Inc). He compared linking to a Web site to using a library card catalog to find information. Further, he ruled that although deep links may cause legal problems for businesses when they contribute to confusion between the identities of commercial sites, it is not the link itself that is the problem. Rather, it is the appearance of confusion of sources that may be an issue in a commercial environment.
Deep linking is not the only concern. Any kind of linking may create problems when the linked site contains material that is allegedly illegal. In December 1999, for example, a U.S. District Court in Salt Lake City, Utah granted a preliminary injunction against a religious organization that maintained a Web site that established links to other sites containing material that infringed on the plaintiff's copyright. The court ruled that the links constituted "contributory infringement" and ordered them removed. However, in that case the links were established in an apparent attempt to provide access to material, which the defendants previously had been ordered to remove from their own site.
The legal world being what it is, a court decision is sometimes not necessary to have an effect on someone's behavior. In July 1999, the publisher of the Web site Movie-List, which contained links to hundreds of movie clips on the web, eliminated all its links to film trailers owned by Universal Pictures when lawyers for the studio complained the links infringed on their property rights. The publisher said he was intimidated and did not want to end up in court against a large corporation.
Some court decisions have been seen as very supportive of linking. In 1997, in an opinion striking down a Georgia Internet statute, a federal district judge suggested that the practice of linking is protected by the First Amendment (ACLU of Georgia v. Zell Miller). In a federal court in September 1998, a California judge dismissed a suit in which the plaintiff claimed that the defendants maintained Web sites that included links to a Swedish site containing copyright infringing material. The court ruled that the copyright infringing material was "several links removed" from the defendants' site (Bernstein v. JC Penney, Inc.).
As the cases above suggest, the law is not yet clear on what constitutes acceptable practice in linking to other people's Web sites. In most instances, however, it appears that linking in itself (whether deep linking or not) should not create legal problems unless there are extenuating circumstances. Setting up links to someone else's website is not the same thing as republishing information (the linking site does not actually store the linked site's information--it just directs the user to that information). Therefore, it seems unlikely that linking can reasonably be seen as copyright infringement absent those extenuating circumstances.
Librarians should not hesitate to provide their users with links to online resources. In effect, "linking" their patrons with information resources is a key element of a librarian's job, whether this occurs in an online environment or not. This is an activity that clearly falls under the protection of the First Amendment. The same protections should also apply to personal use of links on Web sites. Further, Google's popular page rank algorithm uses links to determine the order in which search results are displayed.
- In the vast majority of situations, linking is an activity that can be seen as protected under the First Amendment;
- A good rule of thumb is, if it would be okay in the offline world, it should be okay in the online world;
- Librarians should feel confident that they may use links on their sites to assist people in getting access to information;
- Web designers in most cases are within their rights to create links to other sites whose material does not infringe copyright or other legal concerns;
- Do not engage in "deep linking" unless you obtain permission in writing from the owner of the linked site. You should probably feel free, however, to create links to other people's main or home pages without permission.