It’s All Business…
TO LINK OR NOT TO LINK – THAT IS THE QUESTION
By Atty. Mark A. Wright
McLane, Graf, Raulerson & Middleton

WHETHER OR NOT TO LINK ONE WEBSITE TO ANOTHER IS FRAUGHT WITH LEGAL AND PRACTICAL CONSIDERATIONS FOR E-COMMERCE BUSINESSES.

What is linking?

 One of the Internet's greatest attributes is the hypertext link. The hypertext link – or "link" for short – enables users to move from one website to another by simply clicking on a "link" which may be represented by plain text, a logo, or any other graphic image.
 Hypertext links are inserted into a website by the site's owner, who can create the link without the assistance of the owner of the linked-to site. Because most links benefit the linked site by bringing additional viewers, many (in fact, most) links on the Internet exist without formal agreements or even permission from the owner of the linked site. Linking can also be used to make the content of the linked site appear on the site on which the link is located (commonly referred to as "framing", which may have its own legal consequences) permitting a site owner to profit from the content on a site he did not create, using it to draw traffic and advertisers to the site.

Potential Liability for Unauthorized Links – How to Avoid It

 The law concerning the ability to use hyperlinks is in its infancy relative to other areas of law. If recent lawsuits tell us anything , it is that the operators of commercial websites should take great care in how they structure the hyperlinks on their site and may want to seek permission before linking to the site of another. The willingness of website owners to challenge hyperlinks throws serious doubt in the continued unfettered use of hyperlinks, particularly when placed on or linking to commercial sites which derive revenue from advertisements.
 As a general proposition, absent a violation of rights in the way the link is structured (such as an infringing or diluting use of a trademark, copyright infringement, unfair competition, or defamatory content), establishing a link to another site without obtaining permission is generally not viewed as violating any rights. The common practice of providing a link to quickly take the user back to a site's home page or "source" document should not result in any legal liability. However, there have been a few decided cases that have addressed what types of links may subject the operator of a website to linking.

Deep Linking – A Potential Problem

 What happens when the link bypasses a third-party site's home page and moves directly to an internal page deep within the site? In the original deep link case, Ticketmaster Corporation v. Microsoft Corporation (C.D. Cal. filed April 29, 1997), Ticketmaster accused Microsoft with bypassing its home page by sending users of Microsoft's city guides directly to Ticketmaster's on-line ticket window. Ticketmaster alleged that the deep linking had the effect of reducing its advertising revenue as users would bypass the paid banner advertisements placed on its site. Though Microsoft removed it links to the site after the complaint was filed, the case ended inconclusively with a settlement between the parties. New York Times, December 15, 1999. Recently, however, Ticketmaster lost a significant case involving hyperlinking. In Ticketmaster Corporation v. Tickets.com, 2000 U.S. District Lexis 4553 (C.D. California 2000), Ticketmaster accused Tickets.com of infringing its copyrighted web material by deep-linking customers to an "event page" which displayed events for which Ticketmaster was the exclusive ticket seller. In Ticketmaster Corporation v. Tickets.com, the Court ruled the hyperlinking to the Ticketmaster "event page" did not constitute copyright infringement since no copying was involved.
 Where a person provides a link and either encourages or contributes to the downloading of copyrightable material, copyright infringement can be found on the part of the link provider. In a fairly recent case, a federal judge issued a preliminary injunction against a website operator from encouraging others to download copyrighted material off independent third party sites by calling their attention to the material and posting hyperlinks to those sites. Though the court did not hold that hyperlinking alone was sufficient to show contributory infringement, the encouragement to download by the website operator was a motivating factor in issuing the injunction.

Linking and Unfair Competition Claims

 Linking or "deep-linking" to another website may give rise to liability under the Federal Trademark Act (Lanham Act) and state unfair competition laws. If such linking creates trademark dilution or consumer confusion about the origin or endorsement of a site, liability may be found. In Playboy v. Universal Tel-A-Talk, the court enjoined the defendants from providing a link to Playboy's site, where the defendant was attempting to capitalize on Playboy's marks in promoting their own site. In addition to defendant's direct linking to Playboy's site, the court considered several other factors in finding liability, such as defendant's display of Playboy's trademark/logo on its website, and its use of the Playboy name in its email address.
 While unfair competition laws are more likely to be violated by deep-linking, there are ways to minimize or eliminate the risk of unfair competition claims for linking. To avoid liability for unfair competition in situations of linking, websites should clearly designate that by clicking on a link, the user is leaving the host site and accessing another site. By giving proper attribution to the linked site and content, linking parties can avoid consumer confusion as to the source of the content.

Framing

 Framing is the practice of displaying another person's website in a portion of the browser window, while remaining at the original host site. Framing may infringe the rights of the holder of the copyright in the framed website by creating a derivative work. In framing a website, the host site may substitute its own material and information for that of the framed site, or conceal portions of the framed site, thereby creating an unauthorized infringing derivative work.
 In addition to copyright infringement claims for creating derivative works, framing may result in liability under unfair competition laws. Where framing results in confusion as to the origin, endorsement or affiliation of the framed site to the original host site, unfair competition claims may be raised. In order to minimize liability for framing, host sites should display their own trademarks/service marks, advise users that they are visiting a site outside the host site and give proper attribution to the framed content. Because most framing cases have been settled before the case is decided by the court, there is little guidance from courts on how to avoid liability for framing.

Future of Linking and Framing

 The law relating to e-commerce and linking is in its infancy. However, the willingness of website owners to bring lawsuits challenging hyperlinks created without a license or permission raises the stakes for website operators utilizing links. While commentators believe that links which simply transport the user from one site to another are most likely not actionable under applicable copyright or trademark law, links which transport a user to places in a site other than a home page (deep-link) or links which effectively incorporate logos, names or identities of one site into the frame of another site (framing), may result in liability.

 In conclusion, it is suggested that website operators obtain permission from the site they are linking before creating a link.There are many types of linking agreements that parties enter into to address the rights and obligations of linking sites. The establishment of an unauthorized link from one website to another exposes the owner of a linking site to potential liability. The possible claims that can result from linking includes copyright infringement, trademark infringement, false designation of origin, unfair competition, tortuous interference with contract, consumer fraud and false/deceptive trade practices. Links should be analyzed on a case-by-case basis with a clear understanding of the how the link functions, the purpose of the link and whether the link exposes the website operator to any liability.
 With the softening of the e-commerce market, e-commerce businesses are looking for new ways to generate revenue. As a result, linking agreements and linking fees may become more prevalent.

About the author: Mark Wright, Esq. is a Director of the law firm McLane, Graf, Raulerson & Middleton, P.A. He is the Chair of the firm’s Intellectual Property Practice Group, which counsels clients on matters related to trademarks, copyrights, patent prosecution, licensing, e-commerce and intellectual property litigation in state and federal courts. McLane, Graf, Raulerson & Middleton, P.A. is a full service law firm with 80 attorneys in offices located in Manchester, Concord, Nashua and Portsmouth, NH. Mark can be contacted by phone at (603) 628-1311 or by email at mark.wright@mclane.com. Visit McLane on the web at www.mclane.com