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Lloyd L. Rich
Introduction
One of the basic mechanisms of
the World Wide Web is the use of links from the "Linking Page" to
another Web page that is frequently referred to as the "Linked Page".
Linking (or "hyperlinking" as it is sometimes known) is a powerful
tool for enabling the Internet user to quickly shift to related content
sources. The "link" is usually highlighted in a different color than
other content on the Linking Page and acts as an "active" or
"hot" zone on the Linking Page. The link may be represented by text
or images and permits the viewer on the Linking Page to immediately gain access
to the Linked Page simply by clicking on the text or image. This eliminates the
need to type in the full and sometimes lengthy address of the Linked Page since
the text or image that replaces the underlying code for the link acts as the
address of the Linked Page. When the user activates the link, the user's Web
browser accesses the Linked Page and displays the Linked Page to the user.
The ease of linking however
brings with it legal risks. A Web site owner should be aware that their are a
number of legal issues raised by including links on your Web site to Web sites
owned by third parties and that many of these legal issues have still not been
resolved. These legal issues may include copyright and trademark infringement,
unfair competition, commercial misappropriation, defamation and the right of
publicity.
Legal Issues Involving Linking
It has been the usual practice
for Web site owners to have linked their Web pages with other Web pages without
requesting or obtaining permission from the owner of the Linked Page. The Web
culture viewed such links as having "significant" value to the user
and to the respective owners of both the Linking Page and Linked Page. However,
the increased commercial importance of Web sites may be altering the
traditional Web culture of permitting links without permission.
The disputes involving linking
have generally been of three types. (1) The Linking Page uses copyright or
trademark protected text or images from the Linked Page. Examples of this would
include using an image of the "Coca Cola" bottle or using Nike's
phrase "Just Do It" or using a photograph of an artist's artwork as
the "hot" zone on the Linking Page that when clicked on by the user
accessed Coca Cola's, Nike's or the artist's Web page. (2) The Linking Page
does not link to the Linked Page's "Home Page" but instead links to
an internal page of that Web site. (3) The Linking Page links to Web sites that
carry defamatory material or display and distribute infringing copies of
copyrighted works.
Guidelines for Linking to Other
Web Sites
1.Links to third party Web sites
should be as simple as possible.
It is suggested that you do not
use more than plain-text names for the "hot" zone to link to another
Web page. You should not use a third party's logos, product designs, slogans or
trademarks as the "hot" zone to their Web page since this could lead
viewers of your Web page to believe that the Linking Page endorses or is
affiliated with the Linking Page. In the event you believe you must use as the
hot zone, an image such as the Coca-Cola bottle and not the plain-text name
Coca-Cola, then to preclude any possible liability it would be advisable to
obtain permission from the Coca-Cola Corporation.
It is also advisable not to
describe the Web sites to which you provide links. This will prevent the owner
of the Linked Page from alleging that your description of the Linked Page was
inaccurate or misleading.
2. Link directly to the Home Page
and not to the internal pages of Web Sites.
Controversy involving links to
the internal pages of a Web site has revolved around two major issues. The
first concerns user contacts as it relates to "advertising revenue"
and the second involves bypassing the Web site's "policies and terms and
conditions" governing usage of the Web site that are often are only
accessible from the Home Page.
Advertising that is only
available on a Web site's Home Page is bypassed when a link is not to the Home
Page but to an internal page. This may have a harmful effect on the linked to
Web site's potential advertising revenue as such revenue is usually based on
the number of "hits" to the page that contains advertising.
One lawsuit, that has recently
been settled, involved the Ticketmaster Corporation and the Microsoft
Corporation. Ticketmaster filed suit against Microsoft for improperly using the
Ticketmaster name and logo on its, "Seattle Sidewalk" Web page.
Ticketmaster alleged that Microsoft's actions resulted in the dilution of
Ticketmaster's trademarks, misrepresentation, unfair competition, unfair
business practices, and misleading statements.
Microsoft's use of
"deep" hyperlinks permitted a user of the Seattle Sidewalk Web site
to bypass the policies and service information provided on Ticketmaster's
homepage and allowed the user to go directly to a Ticketmaster internal Web
page to purchase tickets for upcoming events. If the Microsoft links from its
Seattle Sidewalk Web page had been links to the Ticketmaster homepage instead
of to one of the internal pages within the Ticketmaster Web site Ticketmaster's
policies and service information could not have been bypassed by the user.
Ticketmaster alleged that deep linking, permitting the user to bypass
Ticketmaster's Home Page, enabled Microsoft to benefit from Ticketmaster's
trademarks and name.
It was also interesting to note
that before the suit began, the companies were in discussions regarding links
from the Sidewalk Web site to the Ticketmaster site; suggesting Microsoft was
concerned about the legal implications of such linking. However, once the
negotiations failed Microsoft unilaterally established deep links to the
Ticketmaster site.
It may therefore be advisable, to
preclude any potential liability, that the Web site desiring to link to an
internal page of another Web site consider contacting the owner of the Linked
Page before initiating such link and obtaining permission from the owner of the
Linked Page to link to an internal page and not the Home Page.
3. Your Web Site should have a
"Link Disclaimer".
Every Web site should have a
"Terms and Conditions" statement that governs the usage of its Web
site. This Statement should include among other information the Web site's
policies with regard to the company's copyrighted content and trademarks that
are included on its Web site, its "privacy" policy, guidelines for
third party Web sites that may want to link to your Web site and a Link
Disclaimer that specifically addresses the issue of links to and from other Web
pages.
In the case where your Web site
will be the Linked Page you may want to establish guidelines that specifically
address the issues of (1) the use of your logos, designs, slogans or
trademarks, (2) links to internal pages, (3) under what circumstances you will
not permit links to your Web site, and (4) under what circumstances your
permission is required before linking to your Web site.
When your Web site is the Linked
Page your "Link Disclaimer" should address the issues that your Web
site cannot control the content of third party owned web sites that link to
your Web site and inform the user of your Web site that if they visit your Web site
through a link from a third party Web site and find the content of that Web
site inappropriate or offensive that they should contact you so that you may
evaluate this matter. On the other hand, when your Web site is the
"Linking Page" you should notify your Web site users that they may
find links from your Web site to third party owned Web sites that contain
content that they may find to be of interest. You might also want to inform
your Web site users that you initially visited these third party Web sites
before linking to them but that they must understand that you do not control
their content and that such content frequently changes.
Conclusion
Linking from your Web site to
third party Web sites can be a powerful marketing tool for your company. Linking
creates added value for your Web site in that your users will return to your
Web site not only for its content but also for the knowledge that you will link
them to other valuable information that can be found on the World Wide Web. Is
there a better way by which you can obtain repeat and loyal users of your Web
site? 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".
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