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Deep Linking Your Way into a Lawsuit
Published: Oct. 25, 2000
by DeBrae' Kennedy

Every day, Web surfers follow millions of hyperlinks from Web site to Web site. Today, however, the legality of hyperlinking is being debated in courtrooms. What is it about hyperlinking that could lead Web site owners to courtroom battles? To understand the ramifications of this question, it is necessary first to conceptually understand hyperlinking.

In technical terms, a hyperlink is a command in the programming of the Web page that instructs the surferís browser to open the hyperlinked page of another Web site. From the surferís perspective, this technology allows a seamless transition from one Web page to another, without having to type in the address or Uniform Resource Locator ("URL") of the Web page to which the surfer wants to travel. In deep linking, a form of hyperlinking, the homepage of the hyperlinked site is bypassed, and the surfer is taken directly to an internal page of the linked Web site. It is this deep linking that is prone to attack in the courtrooms.

The question remains: Why is deep linking now a legal issue? The answer centers on the evolution of the Web. While the Internet was once a place where exchange of information was of utmost importance, today a paradigm shift is occurring. As generating revenue becomes more important on the Web, the practices that once supported the free flow of information are coming into conflict with practices intended to protect commercial interests. David Gurwin, Andrew Sussman, & Mihir Munshi, Linking and Framing: Unfair Competition on the Internet? (visited October 7, 2000) http://www.bipc.com/articles/linking.htm The case of Ticketmaster v. Tickets.com illustrates many of the legal issues that are being raised with regards to deep linking, none of which have been resolved.

The facts of the Ticketmaster case are straight-forward. Before the lawsuit began, Tickets.com functioned primarily as an information source on tickets, while also selling tickets for a limited number of events. When Tickets.com was unable to directly sell tickets to users, it linked users to Ticketmasterís site. Tickets.com prefaced the link with the statement, "These tickets are sold by another ticketing company." Tickets.comís profit were derived mainly from advertisements on its own site. Ticketmasterís site operated by selling tickets on-line and by accruing advertising revenue based on the number of viewers to its homepage.

Tickets.comís simple act of linking users to the Ticketmaster Web site prompted Ticketmaster to file suit in the Central District of California. The law suit includes a multiplicity of legal issues, such as violation of federal copyright laws, false advertising, violation of state unfair business practices, interference with business advantage and reverse passing off. Linda Rosencrance, Ticketmaster Accuses Tickets.com of Misrepresenting Judgeís ĎDeep-linkingí Ruling (March 31, 2000) http://www.computerworld.com/cwi/story/0,1199,NAV47_STO43732,00.html

Ticketmasterís main complaint was that Tickets.com was attempting to build its business off the reputation of Ticketmaster, a much more established ticket marketer. With regards to deep linking, Ticketmaster complained that such a link bypassed its home page, depriving Ticketmaster of viewers to its homepage for advertising revenue purposes and denying users the opportunity to view the terms and conditions attached to the homepage.

In March, Judge Harry Hupp dismissed several of the claims in the lawsuit, including a claim for breach of contract. Ticketmaster had alleged that Tickets.com violated the terms and conditions of the Web site by deep linking. Ticketmaster argued that the agreement set up by the terms and conditions on the home page was analogous to a shrink-wrap agreement. In dismissing this claim, Judge Hupp stated that users were not required to click on the terms and agreement box before proceeding to the remainder of the site and thus no contract was created. Tammy Bortz, Hyperlinking and Deep-Linking (June 2000) http://www.mbendi.co.za/werksmns/techwks8.htm

On the issue of deep linking, Judge Hupp said that "hyperlinking itself does not involve a violation of the Copyright Act." Explaining this statement, he said that there was no copying involved in linking a user to the Ticketmaster site and that there was no deception, because the user was clearly told that they were being transferred to another site. In the area of unfair competition, Judge Hupp added that deep linking, without confusion of source, does not necessarily involve unfair competition. The judge also raised a question as to whether the registered copyright of the Ticketmaster Web page covered those pages whose information changed on a daily basis, namely those pages that describe particular events. Ticketmaster Corp., et al. v. Tickets.Com, Inc. (March 27, 2000) http://www.gigalaw.com/library/ticketmaster-tickets-2000-03-27.html

This case is far from being resolved, but it does highlight the debate over deep linking. Advocates for protecting business rights argue that those who deep link are unfairly profiting by associating their sites with established businesses. Proponents of deep linking counter by saying that as long as there is no confusion the deep link benefits the destination site by attracting visitors that they would not otherwise have.

In this uncertain legal environment, numerous court cases have already been filed and more are sure to follow. Declan McCullagh, Only News Thatís Fit to Link (August 23, 2000) http://www.wired.com/news/politics/0,1283,38360,00.html. To allay concerns of Web site owners, numerous sites are offering advice to help avoid potential lawsuits. Commentators generally agree that non-commercial Web sites are probably allowed to deep link to other sites. These experts warn, however, that sites that do not have a commercial motive but receive many visitors are likely to be classified as commercial sites by the courts. Bradley Hillis, Thinking About Linking (April 15, 1998) http://www.llrx.com/features/weblink1.htm. For commercial sites, the commentators encourage Web sites to make clear that links will take users to another Web site. In the effort to ensure that users are not confused, the experts warn that logos or other trademarks should not be used to inform the users of the linked Web site. A safe strategy appears to be inclusion of a description of the linked site. Additionally, commentators advise extreme caution when linking to the Web page of a competitor, even if the intent of the link is to direct business to that competitorís Web site. According to these experts, the safest course is to negotiate an agreement before linking. David Gurwin, Andrew Sussman, & Mihir Munshi, Linking and Framing: Unfair Competition on the Internet? (visited October 7, 2000) http://www.bipc.com/articles/linking.htm

With so much up in the air and so little settled, the only constant in the near future is likely to be an increase in the number of deep linking lawsuits.

 





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