May 13, 2002
Long-established copyright laws continue to collide with the Internet. (
Testing the Links
Could Legal Challenges
Limit Internet Linking?

By Peter Dizikes

N E W   Y O R K, May 13 — It's time to test your knowledge about the Internet.

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Let's say you own a climbing store and decide to sell gear online. You try make the site look good by linking to photos of famous mountains you found elsewhere on the Web. Have you broken the law?

Before you answer that, try another question. To further interest the Web surfers who visit your site, you provide links to articles about mountaineering from other sites around the Internet. Is that illegal?

To the consternation of some observers, a recent federal court ruling in San Francisco has called into question some basic linking practices — and demonstrated the extent to which the legal status of links remains undefined, even though they have been the essence of the World-Wide Web since Tim Berners-Lee developed it in 1989.

"There's never been a definitive legal ruling" about linking, says Fred Von Lohmann, a lawyer for the Electronic Frontier Foundation (EFF) in San Francisco, who favors unrestrained linking. "There's still a lack of clarity."

Court: Thumbnails OK …

Many of the concerns of groups like the EFF stem from a February ruling in San Francisco, in which Ninth Circuit Court of Appeals decided that a search engine's style of linking to photographs was illegal.

Les Kelly, a professional photographer, brought the case against the Arriba Corp., then-owners of, a visual search engine that catalogs photos from the Web. Kelly argued that by showing his work on its site, had violated his copyrights and damaged his ability to sell them over the Web.

In its ruling on Kelly v. Arriba, the appeals court found that could show the reduced-size "thumbnail" versions of photos, saying the smaller format diminished their aesthetic value to the point where they were not competing with Kelly's originals. But it ruled that could not display his full-sized images on its site.

"By giving users access to Kelly's full-sized images on its own Web site, Arriba harms all of Kelly's markets," stated the ruling.

… But Don't Link Them Up

By itself, that part of the ruling might not seem to call the status of Web links into question. But the court said the full-sized images ran afoul of copyright law even though was linking to Kelly's site, instead of reproducing the images separately.

Specifically, the court found the "in-line" linking style used by — in which a new browser window displayed each Kelly photo within the standard layout, and contained the same advertising as the site — was illegal because it could fool viewers into thinking they were still on the site.

Know Your Links
Hypertext Link A basic link connecting one Web page to another.
In-line Link A link in which the page or image is framed by a newly-opened browser.
Deep Link A link opening up a page "inside" on another site other than its home page.

The EFF has filed a brief urging the court to reconsider its opinion in the case — which it has not done to this point. The EFF brief argues that could not have committed a copyright violation since it was not, strictly speaking, reproducing Kelly's work at all, but simply pointing viewers toward it. The court has not yet revisited the matter.

"A proper understanding of the technology involved in Ditto's activities makes it clear that at all times it is Kelly who is transmitting his works to end-users," says the EFF brief, "and thus Kelly who is publicly displaying his own images. Ditto's only transmission is a URL."

Breaking the Deep Links

But that's not the only legal question involving links to be raised lately. Belo, the parent corporation of the Dallas Morning News, recently sent a letter to a small Web site,, warning it to stop using so-called "deep links" to direct readers to specific news articles from the paper's site, rather than its home page.

Belo spokesman Scott Baradell declined to talk about the particulars of the matter, saying it was an ongoing legal action, but sought to downplay the issue.

"We're not on a crusade against deep linking," says Baradell. "This was a specific case, and it does not reflect a general viewpoint on the issue of deep linking. We link [to other sites], other people deep link to us."

And two years ago, a judge ruled that deep linking was legal, in a case involving Ticketmaster and — making a legal struggle by Belo seem futile.

Web of Deception

But that's where the Kelly v. Arriba ruling comes into play. If links can be considered copies of original material, then the presentation of those links becomes more important. In turn, the question of deception assumes more legal significance.

"With in-line links, there's a potential passing-off issue," says William Fisher, a professor at Harvard Law School in Cambridge, Mass. "The underlying worry is that the defendant there is deceiving the public about whose pictures these are."

That's less likely to be the case with a piece of writing whose authorship can be more easily identified than an unlabeled photo, but Fisher also notes that "the absence of consumer deception" has become an important criterion in assessing the legality of deep links, too. Belo may not choose to do so, but someone could try to apply the San Francisco court's decision to a deep-linking case involving news articles.

So what does this mean for our hypothetical climbing-gear site?

First, Kelly v. Arriba gives you carte blanche to pepper the site with thumbnails — but if you want to put a full-size version on the site, you should ask for permission, even if you're just linking viewers to someone else's URL.

And it also means that if your deep links to other sites are somehow deceptive, the site could be in legal trouble. That could apply if the links to climbers' journals pop off into a separate browser and are framed to look like your own original material, or if the new browser shows your site's ads — even if, again, you're just linking viewers to someone else's URL.

And finally, it means people should take little for granted as long-established copyright law continues to collide with the Internet. When is a link a copy, and when is it just a link?

"We don't know how copyright law applies to the Web," says Von Lohmann. "When you visit a Web page, you are making a copy in your browser. Nearly eight years after the Web [became commercial], we still don't have a good legal analysis of that."


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