Posts Tagged litigation

The Feds have done it again… and with the implicit acquiescence of the justice department no less. Jeez when will the Feds ever get over the fact that they just dont rule the world?

For the past few weeks I’ve become aware of a number of disturbing lawsuits revolving around hyperlinking. The phenomenon is certrainly not new. It has been highlighted in the past but lately it just seems there’s a surge in this type of lawsuits.

The background:

People, bloggers, sites are being sued for deeplinking. Deeplinking is the act of linking to a page nested deeper than the homepage of a website. The suits are usually based on the premise that the act of deeplinking is a copyright infringement in some way or another.

Laws on copyright

Copyright law in the electonic media world, and Internet is still quite young. There are not many test cases out there which help in the general understanding of the laws governing copyrights and electronic media. Without the benefit of these to shed a clear light on the situation, one has to turn to the letter of the law. The following pieces of legislation are generally accepted as the basis for copyright law in the digital world:

• Under European legislation the main body of interst is the EU directive 2001/29/EG regarding copyrights in the Information Society.
• For the United States the by now infamous Digital Millenium Copyright Act is the legislation of interest.
• The WIPO International Copyright treaty is another document of interest here.

If you’re not a lawyer (and I’m not one btw), most of the texts cited above will mean little to you. To avoid the legalese, you can have a cursory read of David Starkoff’s Honours Thesis: “Copyright: Law and practice in the digital age“. While I haven’t read yet the entire document it lays out the facts and legislation in a clear and accessible fashion.

…get practical

What is a link? The only descriptors I could come up with were: bookmark, reference and thesaurically (is that really a word thesaurically?) related words. If a link is truely a reference, a bookmark, then it should be treated as such by legislation. If you were to write a white paper and reference some other document, you would put in a footnote or an endnote with the appropriate information such as: the author’s name, the name of the publication, release version and year, as well as the page number. Quotes would undergo a similar approach. Now how is this different from linking, or for that matter deeplinking?

In effect linking to a site’s root or home page is essentially giving a book reference. Deeplinking is essentially the same, but provinding the page number as well. Now where’s the harm in that? Where’s the copyright infringement? In the US a March 27th 2000 ruling by Judge Harry Hupp in essence confirmed my thoughts:

“[H]yperlinking 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.”

Take the issue to the extreme and you’d be suing Google. In essence, all search engines provide deeplinking. If you ask the Danish Newspaper Publishers’ Association, they will tell you that suing a news search engine is quite allright.

…there’s the but

There is another side to the whole linking thing. What about embedded links? What about certain framing practices you can see around the web? Are those not infringements of copyright? One should distinguish between the use of explicit links, which throw you to another site, and other types of links. Embedded links and framing are especially good targets for copyright issues. If there is any possibility of confusion as to whom the copyrighted owner of the displayed content is, then a suit is warranted. At least that’s my opinion.

Another way of looking at the issue is by taking the tenure that if you’re publishing content for everyone to see, then the right to referencing that content is implied. If you do not with others to link directly to the content, you should protect it. Protection can be achieved by any number of techniques: redirection, mandatory registration, etc.

The bottom line

It is clear that the legislative is far from done with issues related to copyright infringement. If you want to play it safe, use explicit links, dont rip stuff or embed it.

Is it lunacy? Yes it is.