Legality of Linking

In his latest blog, New York Times columnist David Pogue asks, What’s Wrong With Linking?:

Every now and then, I get an e-mail message from someone, asking permission to link to my personal Web site.

I always grant it, of course. Isn’t everyone with a Web site hoping for as many visitors as possible?

So I guess what I don’t get is: Why would anyone ask permission? Would anyone deny permission?

This was a subject of some controversy for many years, and the details still haven’t all been ironed out, especially internationally.

Some of the legal issues involved include:
– Defamation (e.g., Googlebombing with defamatory anchor text)
– Copyright infringement
– Trademark infringement and dilution

It becomes even more complicated when you talk about “framing” (presenting another site’s content framed within a presentation page you control), “deep linking” (linking directly to a specific page on a site that ordinarily must be navigated to), and “inlining” (displaying text or images from another site seamlessly within your page).

Fortunately, the U.S. courts have ruled very clearly that hyperlinking, in and of itself, does not constitute any kind of copyright violation. In the 2000 case of Ticketmaster Corp. v., Inc., the court ruled:

Further, hyperlinking 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.

So for the general public, no permission is required to create a textual link to any other publicly available site. Even the use of trademarked names within the links, so long as they are linking to the owner of the trademark, constitutes fair use. And the owner of a public website cannot, generally, deny permission to anyone else to link to them with a text link using reasonable, non-defamatory text.

However, as ruled in Playboy Enterprises, Inc. v. Universal Tel-A-Talk Inc., the same is not true of using a company’s trademarked logo. Playboy argued, and the court agreed, that the use of the logo might confuse visitors to the site by implying that Playboy somehow endorsed or sponsored the site.

Also, if you enter into any kind of contractual obligation with a site, such as becoming a registered user or affiliate, then the contract may specify the terms and conditions under which you can link to the site. Some companies have attempted to put linking restrictions in the terms of use agreement for their public websites, generally intended to prevent deep-linking. This hasn’t yet been tested in court — a lawsuit between Ticketmaster and Microsoft over this issue was settled confidentially out-of-court.

For more on this issue, there’s a great overview at FindLaw and an extensive bibliography/webliography created by Stefan Bechtold.