San Juan, Sara Jei: To Link or not to Link – The Legal Implication of Website Linking


INTRODUCTION

The Internet is an interconnected system or a vast link of private and public, academic, business, and government computer networks. This interconnectivity feature made the internet the most popular instrument of communication and the most powerful medium for social networking, commercial dealings, political relations and academic interactions. The links between and among local and global networks permit access to documents, images, videos and other digital data contained in a webpage and allow users to retrieve information and related content sources from a dynamic resource that is made available, both for public or private transactions. What formerly took days or years in acquiring useful information are now accessible instantaneously and at the option and pleasure of the user. Thus, linking has been considered the heart and soul of the World Wide Web.

Linking is a conventional and established practice among internet user. Its significance and importance has been recognized in the cyber world, that without which, the purpose of the web would not be achieved.

With the ubiquitous use of the internet and the creation of webpages or websites as means to facilitate transactions, legal issues and questions of liability arise, one of which relates to the risk of linking. It has been said that this method of interconnection begets intellectual property violations and trespass to property rights. Others claimed that they have been prejudiced by some unscrupulous links and incurred proprietary losses.

LINKS

A hyperlink, or simply a link, is that which connects the contents of a webpage to another, either within the same website, or to a different page found on a different location in the internet. It is normally a text, usually highlighted in a different color, to distinguish it from the other contents on the page, or an embedded image. Basically, a link is an electronic address or a computer code which is encrypted or stored on the text or image that leads or takes the user to another location when accessed. “As such, like user-activated electronic book marks, it is one of the great facilitators permitting the user to navigate the Internet without the usual aggravation and delay which have led to the nickname “World Wide Waste of Time.”” [1]

There are two kinds of link, the HREF link and IMG link. The HREF (Hypertext REFerence) Link is that which instructs a browser to stop viewing content transmitted from one location, and begin viewing that of another. An IMG (IMaGe) Link, on the other hand, instructs a visiting browser to supplement the text on the page with an image contained in a separate image file.[2]

Linking is of three types. The intra-page link is a link in a page which brings the user to a different part within the same document. It may direct the viewer from the top of the document to a specified section within the document, or it may lead the viewer from the end of the page back to the top of the document. An intra-system link is one which establishes a connection to different documents on the same server. It may be a connection from the home page of a website to another webpage belonging to the same website owner. The inter-system link, finally, is that which connects documents found on different servers. It is an interconnection of different websites, usually of related contents.[3]

LEGAL ISSUES

Linking, generally, is not illegal. It is an acceptable or a merely tolerated practice among web users. Being the life of the internet, to prohibit or restrict linking would not be viable and will be impractical. Linking without requesting or obtaining permission has also been regarded as a usual practice among website owners and developers. By creating a website, owners thereof has impliedly given permission for others to link to his site, and other users is also deemed to have given an implied consent to link to their own website. This is known as the Doctrine of Implied Access on the Web.[4]

This practice, nevertheless, caused active debates and gave rise to issues on copyright and trademark infringement, deep-linking violations, defamation, the questions on the legality of framing and other concerns which undermine the proprietary rights or interests of others. The primary issue that confronts internet users now is the query with regards the legitimacy and propriety of linking that is made unilaterally or without the permission from its owner.

Copyright Infringement.

Copyright is that right granted by law to the author of an original work to exclusively carry out, authorize or prevent the reproduction, making a derivative work, distribution, rental, display, performance or other communication of the work to the public.[5] The laws on copyright generally protect the right to reproduce the work and to create a derivative thereof, while regulation or restriction may be exercised upon the other rights.[6] Aside from the copyrights or economic rights, some jurisdictions also grant moral rights upon the author of the work, such as giving credit and attributing the work to its creator, allowing the author to alter the work prior or to hold it from publication, to object to any acts which may prejudice the honor and reputation of the author, and to restrain the use of the name of the author to any work that is not of his own creation.[7]

Copyright infringement occurs when a person who is not a holder of the copyright, or a licensee or an assignee of such right, exercise the exclusive rights granted only to the author or owner thereof. The moral rights are also violated when the author is not acknowledged and his is not given credit for his work, or when a person claims as his own the works of others.

The right to reproduce a work is violated when a copy is made of the original work without the permission or consent of the owner thereof. There are no issues if the link is made within the same page or to another webpage from the same website. However, it would be different when a web user links a website to another, especially when there is no permission from the owner of the linked site. In this situation, what is linked is the URL (Uniform Resource Locator) or the web address of the linked page. In creating the link, the author of the linking page does not reproduce any part of the linked site except for the latter’s URL. A URL is considered as a ‘fact,’ therefore it is not copyrightable. It could be argued that the URL bears the expression of the author of the linked page as to name it gives the document, therefore contains protected expression. Yet, they are not among those copyrightable under the law. Thus, there is no infringement of the reproduction right through linking. [8]

Copyright is also said to be violated by making a derivative work based on the original through dramatization, adaptation, translation, adaptation, abridgement, arrangement or other transformation of the work. Then again, it must be stressed that in making a text link to another website, the linking page does not recast or transform the contents of the original work, therefore, there is no copyright infringement by linking.[9]

Generally, when an unauthorized IMG link is used, which is incorporated into one’s own webpage, there is no direct infringement. “Nonetheless, when the visiting browser retrieves the image from the other web sites and combines it with the text on the current page, the creator of the web site may be guilty of contributory copyright infringement for creating a derivative work.”[10]

Another right of copyright holders is the exclusive distribution of copies of the work to the public by way of sale or other transfer, or by lease or rental. A person who distributes document on the web does not necessarily make or reproduces a copy thereof. “In Netcom, where a user placed an RTC document on the Netcom computer, the court rejected RTC’s argument that Netcom should be liable for direct infringement of RTC’s distribution right. The court reasoned that only the person who uploads the document to the server should be liable for direct infringement. Similarly, in Sega Enterprises, Ltd. v. MAPHIA, a bulletin board operator was found liable for contributory infringement rather than direct infringement for allowing users to upload and download copyrighted Sega video games. These cases suggest it is the person who places the document on the server who is liable for direct infringement of the distribution right.”[11]

A person who makes a link to the server where the linked page is located is not liable for direct infringement through distribution. When the copyright owner of the linked page placed it on the server, there is an implied authorization or consent for its distribution and the users who make a link to the server cannot be made liable. But when the link is made to a document that has been placed on a server without the owner’s consent, there may be liability upon the author of the linking page since it encourages further distribution of the document.[12]

Trademark Infringement.

A trademark is a distinctive sign or character used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.[13] Certain rights attach to a registered mark, such as the exclusive right to prevent others who have not acquired consent, from using in the course of trade identical or similar signs to those in respect of which the trademark is registered, where such use would result in a likelihood of confusion.[14] Trademark law is designed to protect consumers from confusion as to the source of goods, as well as to protect the trademark owner’s market. To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. [15]

Trademark infringement occurs when one party utilizes the mark of another as to create a likelihood of confusion, mistake and/or deception with the consuming public as to the source or sponsorship of goods or services. Problem arise when the linking site uses the registered marks or signs of another which creates a false representation of relationship between the linking site and the linked site as to cause an impression that the linking site is affiliated with, endorsed or sponsored by the linked site. [16] The linked site may raise the issue that it has been unfavorably represented or been misrepresented by the linking site, and this may give rise to a claim of trademark infringement.[17]

Deep-linking.

Deep linking occurs when the linking page does not access the linked page’s homepage but instead directs its viewer to an internal or sub-page of the website [18], whereby the intervening pages of the host website are by-passed. It is also reported by some website owners that “deep links ‘steal’ traffic to their homepages or disrupt the intended flow of their websites.”[19]

More often than not, it is through the homepage where the host sites sell their advertisement.[20] When the homepage is by-passed by links redirecting to an internal page, the potential advertising revenue is affected, especially for those whose “revenue is … based on the number of “hits” to the page that contains advertising.” [21] It is a form of a free rider or unfair competition, where the linking website benefits at the expense of the linked website. “The branding and paid third party advertisements of the linked website may not be seen by the user or, if they do appear, may conflict with the advertisements of the originating site.“[22]

Another issue raised is the bypass of the website’s “policies and terms and conditions” governing the usage of the website that are often accessible only from the homepage, and through which they could enforce their rights upon violation.

However, in the US case of Ticketmaster v. Tickets.com, the court held that deep links do not infringe copyrights. “[H]yperlinking does not itself involve a violation of the Copyright Act 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.” [23]

Defamation.

Defamation is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image.[24] Linking may be defamatory or libelous if it carries with it defamatory materials or display, such as imputation of a false statement causing damage to reputation of others. This is likely to happen when a linking site inserts a text or image, referring to another person, and adds statement which could prejudice to honor or reputation of such person. The linked image or text may not be defamatory per se, but sometimes, the context on how the link was used may turn an innocent statement into defamation.[25]

Frames.

Framing or in-line linking is made when the contents of a website is linked to another website making it appear within a frame or pane which subdivides the webpage. By framing, it becomes possible that a webpage could show pages from two websites at a time. “Framing technology points to content elsewhere on the Web on a third party’s Web site and ‘pulls’ the content into the screen of the Web site to which the user is connected — whether the content is a ‘clip’ of text, audio or video.” [26]

The use of frames can mislead the viewer of a site as to the creator of its content. Three objections were raised by those affected by linking through frames made without the permission of the owner. “First, they argue that web surfers might easily be confused concerning the relationship between the framed site and the framing site. Second, the framing site is parasitic, unfairly deriving traffic from the legally protected work on the framed site.  Third, the activity of framing distorts the aesthetic of the target site.” [27] Technically, framing can be considered as an act of infringing copyrights or trademarks.

REGULATING THE LINKS

The practice of linking cannot be proscribed, neither is it encouraged, especially when the rights of others are affected. Thus, it is recommended that when the use of links is inevitable, it must be made consistent with the concept of fair use, a doctrine which allows the use of copyrighted material or work without requiring the consent or permission of the owner of the right. Four factors must be considered to evaluate the fair use of copyrighted material:

  1. the purpose and character of the use,
  2. the nature of the copyrighted work,
  3. the amount and substantiality of copying, and
  4. the effect of the use upon the potential market for or value of the copyrighted work.[28]

To avoid infringement to copyrights and trademarks, it has been suggested that plain-text names be used to link to another page. It is also advisable not to describe the websites that were linked as to prevent the owner of the page from alleging that the description of the linked page was inaccurate or misleading or leads to defamation. The use of registered logos, product designs, slogans or trademarks as link must be prevented to remove doubts as to the affiliation of the linking page with the linked site. And whether text or image is used, it is advisable that in both cases that the permission of the owner of the linked site be sought to forestall any possible liability that may be incurred from its use. [29]

With regards deep-linking to an internal page of a website, it must be considered that if this practice cannot be avoided, the consent of the owner of the linked page must first be obtained to preclude any liability which the owner of the linked page may raise. Avoid deep linking that would impair the proprietary rights of others. The site owners must not be deprived of income that they are legitimately entitled to.[30]

The ‘Terms and Conditions’ of the linked website must also be plain and clear with regards their policies on copyrighted contents and trademarks, specifically addressing the issues of “(1) the use of logos, designs, slogans or trademarks, (2) links to internal pages, (3) under what circumstances you will not permit links to your website, and (4) under what circumstances your permission is required before linking to your website.” [31]

The owner of the linked site must establish its guidelines to address the issues of linking to and from other webpages through a Link Disclaimer. It has been suggested that “when your website is the linked page, your ‘Link Disclaimer’ should address the issues that your website cannot control the content of third party owned websites that link to your website and inform the user of your website that if they visit your website through a link from a third party website and find the content of that website inappropriate or offensive that they should contact you so that you may evaluate this matter. On the other hand, when your website is the ‘linking page’ you should notify your website users that they may find links from your website to third party owned website that contain content that they may find to be of interest. You might also want to inform your website users that you initially visited these third party website before linking to them but that they must understand that you do not control their content and that such content frequently changes.” [32]

“The American Bar Association’s Cyberspace Subcommittee has suggested a form of linking agreement while conceding that requiring permission is inconsistent with the nature of the Internet. Certainly such agreements are prudent if not always practically attainable. When used, they can obtain other benefits… They are obviously the norm with cross links, where both parties are similarly motivated to link to each other and are sharing revenue from advertising or product sales on the linked sites. They are considerably more difficult to obtain if there is no benefit to the linked site or if there is some possible detriment. Under these circumstances, links should be confined to minimum text only and should link through the main page or index, not directly to a high value location deep within the site even if this is possible. It has even been suggested that a disclaimer be added as to the relationship between sites when there is no linking agreement, but this seems like overkill. On the other hand, since disclaimers may well be desirable as to the content of linked sites, it is easy to disclaim any relationship at the same time.”[33]

In making use of frames, the boundaries of the frame must be clear and the site owner’s other content and advertisement must be clearly separable, as to avoid any possible confusion and further liability.[34] Passing off must be avoided or that link which misrepresents other’s work as one’s own. It has been suggested by some that the links must be set up in a way that it would be accessed in a new browser page, instead of having it framed within the same page. [35]

One important guideline to always remember is that you should only “link to other Web sites in the same manner that you would like them to link to your Web site”. [36] And if the owner of the linked site objects, we must be prudent enough to remove the links.[37]

CONCLUSION

Open communication allows the use of linking without consent or permission. [38] Linking is a definitely a useful tool in the advancement of the common good. The purpose of the web would be defeated if linking will be proscribed. If current practices are restricted, the Internet will fail to live up to its potential as a democratic, interactive medium of communication and social interaction. We are privileged to experience the luxury brought about by advancement in technology. NETiquette, however, dictates that we must not abuse this privilege.


Endnotes

[1] Controlling Web Advertising: Spamming, Linking, Framing, And Privacy. Mary M. Luria. http://cyber.law.harvard.edu/property00/metatags/mixed2.html

[2] Linking and Liability. http://www.bitlaw.com/internet/linking.html

[3] Linking Copyrights to Homepage. Matt Jackson. http://cyber.law.harvard.edu/property00/metatags/link1.html

[4] Website Linking Issues. http://www.benedict.com/Digital/Web/WebLinks/aspx

[5] Section 177, Intellectual Property Code of the Philippines.

[6] Q&A on Hyperlinks. http://www.chillingeffects.org/linking/notice.cgi?NoticeID=18954

[7] Section 193, Intellectual Property Code of the Philippines.

[8] Interconnectivity. William Fisher and Dequan Wang. http://cyber.law.harvard.edu/ilaw/Interconnect/

[9] Interconnectivity. Supra.

[10] Web Site Legal Issues. http://www.bitlaw.com/internet/webpage.html

[11] Interconnectivity. Supra.

[12] Interconnectivity. Supra.

[13] Trademark. Wikipedia, the Free ENcyclopedia. http://en.wikipedia.org/wiki/Trademark

[14] Section 147, Intellectual Property Code of the Philippines.

[15] Q&A on Hyperlinks. Supra.

[16] Web Site Legal Issues. Supra.

[17] Linking and Crawling Issues. Ivan Hoffman, BA, JD. http://www.ivanhoffman.com/linking.html

[18] Internet Legal Issues: Linking. Lloyd Rich. http://www.publaw.com/linking.html

[19] Frequently Asked Questions (and Answers) about Linking.http://www.chillingeffects.org/linking/faq.cgi

[20] Linking and Crawling Issues. Supra.

[21] Frequently Asked Questions (and Answers) about Linking. Supra.

[22] Controlling Web Advertising: Spamming, Linking, Framing, And Privacy. Supra.

[23] Frequently Asked Questions (and Answers) about Linking. Supra.

[24] Defamation. Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Defamation

[25] Internet Legal Issues: Linking. Supra.

[26] Controlling Web Advertising: Spamming, Linking, Framing, And Privacy. Supra.

[27] Controlling Web Advertising: Spamming, Linking, Framing, And Privacy. Supra.

[28] Section 185, Intellectual Property Code of the Philippines.

[29] Internet Legal Issues: Linking. Lloyd Rich. http://www.publaw.com/linking.html

[30] Deep Linking. Paul Pedley. http://web.freepint.com/go/newsletter/129#tips

[31] Internet Legal Issues: Linking. Supra.

[32] Internet Legal Issues: Linking. Supra.

[33] Controlling Web Advertising: Spamming, Linking, Framing, And Privacy. Supra.

[34] Controlling Web Advertising: Spamming, Linking, Framing, And Privacy. Supra.

[35] Deep Linking. Paul Pedley. http://web.freepint.com/go/newsletter/129#tips

[36] Internet Legal Issues: Linking. Supra.

[37] Website Linking Issues. Supra.

[38] Controlling Web Advertising: Spamming, Linking, Framing, And Privacy. Supra.



Author licensed this article under Creative Commons Attribution 3.0 Philippine license

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