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Emerging Legal Guidance on 'Deep Linking'
By Margaret Smith Kubiszyn
Summary: The practice of "deep linking" -- when one web site links to a page deep within another site -- has been a great source of controversy in the Internet community. Although at least one case failed to find this practice illegal, it remains an unclear area of Internet law. This article explains why.
Author: The author of this article, Margaret Smith Kubiszyn, is a member of the GigaLaw.com Editorial Board and practices patent, trademark, copyright and computer law as an associate at the law firm Bradley Arant Rose & White LLP in Birmingham, Alabama. She is a registered member of the U.S. Patent Bar and has written on various Internet law topics. E-mail: email@example.com.
The Deep-Linking Debate
The practice of "deep linking" -- when one site links to a page of another site other than the other site's home page -- has been a great source of controversy in the Internet community. The issues regarding the legality and propriety of deep linking, while hotly debated, have yet to be resolved with any definitive standards or rules. While many companies have contested the deep-linking practices of others, Ticketmaster has become the driving force in compelling a resolution of this issue. A recent decision by a Los Angeles district judge has been touted as the end-all to the deep-linking dilemma. However, although this decision does offer some guidance, it hardly ends the debate.
Linking itself is vital to the structure of the Internet. It is a rare web site indeed that contains no links to other sites or is not linked to by other sites. Links make the web manageable to surfers, enabling users to easily find useful information on topics of interest. So-called deep links are links to an interior page of a web site. By deep-linking into a site, the linking site allows the user to bypass the home page of the linked site, a page that often contains advertising, terms and conditions and proprietary information relevant to the use of the linked site.
Linkers argue that deep linking is simply in line with the free nature of the web, that anyone who creates a web page in effect grants the entire cyber community an implied license to link to that page. Besides, the linkers contend, they are actually doing the linked sites a favor by driving users to the linked site.
On the other hand, linked sites, especially commercial web sites, are crying foul. They believe that they should have the right to control how users experience their web sites, and that they could lose advertising revenue if surfers are linked to an interior page instead of an ad-ridden home page. Moreover, they contend that users may not even realize that they have been relocated to a new web site.
In essence, this is the same conflict we see over and over in dealing with Internet issues – the free-wheeling, "anything goes" cyber-culture fighting the evolution of the Internet into a commercial medium for companies intent on protecting their brands and corporate images.
Ticketmaster v. Microsoft
The first major case involving the practice of deep linking involved Microsoft's use of deep links from its "Sidewalk" web guides. These web guides spotlighted, among other things, upcoming events in a particular area, and would provide deep links to information on specific events on interior pages of the Ticketmaster web site. At that time, Ticketmaster had recently signed an agreement to provide event information and ticket-ordering links to a competing web guide service, CitySearch. Through this agreement, CitySearch was paying Ticketmaster for what Microsoft was taking for free. Tickemaster filed suit against Microsoft on April 28, 1997, arguing that Microsoft's practices devalued Ticketmaster's site by bypassing its home page.
The case, which was closely watched by Internet experts hoping for some clear guidance on linking policies, settled in February 1999. In the settlement, Microsoft agreed not to provide deep links to Ticketmaster's site, agreeing instead to link only to the Ticketmaster home page. Following this settlement, Ticketmaster allowed deep linking by sites such as Yahoo and Knight-Ridder, but only after the parties had entered into a linking agreement.
Ticketmaster v. Tickets.com
Once again, Ticketmaster took the lead toward resolution of the deep-linking issues by filing suit against Tickets.com in July 1999. Tickets.com could be characterized as a competitor of Ticketmaster, acting as a clearinghouse for tickets, linking to sources for tickets to events (including links to Ticketmaster), auction services and premium ticket brokers. Ticketmaster alleged that, in addition to deep linking into Ticketmaster's site, Tickets.com copied material from the Ticketmaster site and posted false information about the availability of tickets from Ticketmaster.
Tickets.com filed a motion to dismiss Ticketmaster's complaint. Once again, industry experts were watching the case, waiting for a clear resolution of the deep-linking issues.
In October 1999, Ticketmaster issued a statement on its web site outlining the types of linking that it considers acceptable, such as consensual linking, and those it does not, such as linking "for distinctly commercial reasons" beyond navigation. Ticketmaster called for distinctions to be made in linking debates such as the extent of linking, motivation of the linking site, and the status of the linking site as a competitor or ally. Ticketmaster contended that it filed suit against Tickets.com because the Ticketmaster pages "represent the relationships Ticketmaster and Ticketmaster Online have built with venues, acts, teams, promoters, and  ticket buyers over more than 20 years," and that Tickets.com was "attempting to build one business on the back of another, plain and simple."
On March 27, 2000, U.S. Judge District Judge Harry Hupp issued a ruling dismissing four counts of Ticketmaster's complaint, including some counts involving deep linking. In dismissing the first claim, which alleged copyright infringement, Judge Hupp stated: "[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."
Judge Hupp also dismissed Ticketmaster's claim for breach of contract, which alleged that, by using the Ticketmaster site, Tickets.com was bound by the terms and conditions on the Ticketmaster home page that prohibited deep linking, and that Tickets.com breached this provision by deep linking to the Ticketmaster site. Judge Hupp dismissed the claim, stating that Ticketmaster's complaint set forth no facts indicating that Tickets.com knew of or agreed to these terms.
Judge Hupp also denied the motion to dismiss Ticketmaster's claim of unfair competition, noting that the allegations that Tickets.com falsely implied an association with Ticketmaster and gave misleading information about Ticketmaster could possibly support such a claim. Judge Hupp rejected the argument that allegations of deep linking could support a claim of unfair competition, however, stating that: "The complaint also alleges deep linking as an example of unfair competition, but the court concludes that deep linking by itself (i.e. without confusion of source) does not necessarily involve unfair competition."
So, Where Are We?
Although the news reports on the Ticketmaster v. Tickets.com case have enthusiastically proclaimed that the controversy is over, that deep linking is okay, Judge Hupp's ruling hardly lays forth a road map telling us when we can, and, more importantly, when we cannot, deep link. Clearly, Judge Hupp leaves open the possibility for a claim of copyright infringement and unfair competition in cases where the user could be confused as to the source of content or be oblivious to the fact that he had been linked into the interior of another site.
In the majority of the instances of deep linking -- where there is no confusion as to source, where the user knows he has been transported into another site -- is deep linking always okay? Probably not. It is highly unlikely that a single, short opinion on a motion to dismiss will conclusively determine the issues involved in deep linking. The concerns expressed in Ticketmaster's October statement regarding deep linking have merit. Much as in cases involving such issues as framing and meta-tagging, issues of fairness will inevitably factor into the resolution of the deep-linking dilemma. Factors such as the status and motives of the linking site are bound to enter into future court decisions.
The Ticketmaster v. Tickets.com case is important, but we are a long way from a definitive road map on how and when we can employ deep linking.
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