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If Links Could Kill

Certain types of links most likely do come under exceptions to the First Amendment. As Ramasastry points out, instructing visitors to kill someone then linking to a web page containing that person's address would constitute a threat or incitement to violence (not to mention a possible invasion of privacy), and would not receive any First Amendment protection.

A closer question is whether a link to such a threatening site would get any protection. For example, suppose a professor provided students in a class on violent domestic extremists with links to The Nuremberg Files or an animal rights site that exposes the personal information of researchers performing animal experimentation - would that come under the exception, or is it protected speech?

Courts have declared other sorts of links to exist outside the scope of the First Amendment as well. A court in Utah has suggested that a website that removed copyrighted material from its own servers, but then linked to other sites containing the same material, had engaged in contributory copyright infringement and ordered the site to remove the links.

A federal court in New York also declared that web sites providing links to DeCSS code stored on other sites constituted trafficking in circumvention measures in violation of the Digital Millennium Copyright Act, and upheld the DMCA's anti-trafficking provisions as consistent with the First Amendment.

Deep links present especially tough questions for the law. A federal court in California struggled with the question of whether Tickets.com's use of urls that deep-linked into Ticketmaster.com's site violated Ticketmaster's copyright. It eventually concluded that it did not, since there was no actual copying involved, although the judge left open the possibility that Tickets.com could be liable under contract law for violation of Ticketmaster.com's terms of service.

In an especially interesting case out of a federal court in Texas last year, a judge found that a motorcycle racing site had violated the plaintiff's copyrights to live audio webcasts of racing events by posting links to the webcasts. The judge analogized the defendant's actions to the bouncing of satellite broadcasts to unauthorized viewers during transmission and ruled the practice a copyright violation, despite the defendant's protests that he hadn't actually copied anything.

It seems that the judge applied the law incorrectly in that case in order to reach what he thought was the correct result. The logic of the Ticketmaster decision seems much more appropriate: copyright law was inapposite to this situation since, as the defendant pointed out, he hadn't made any copies of the plaintiff's intellectual property. Some other legal theory could have applied to the situation to offer the plaintiff some relief, however.

After all, the plaintiff did lose out on advertising revenue since the listener accessing the program from the defendant's site hadn't navigated through advertisements or sponsor listings, and the defendant's link did somewhat undermine the plaintiff's claim to its sponsors that it was the exclusive source for the webcasts. But these wrongs are more properly addressed by contract, trademark or unfair trade practices law than by copyright law.

Regardless of what law the court should have applied, though, the point remains: deep links into a web site - especially a competitor's website - exist in a grey area of cyberlaw.

Post that url at your own risk. ®

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