Original URL: http://www.theregister.co.uk/2008/09/11/the_legality_of_deep_linking/

Web designer sues Brat City for assaulting hyperlink

Can you link wherever you like? Maybe not

By Kevin Fayle

Posted in Law, 11th September 2008 20:50 GMT

Last year, Jennifer Reisinger, a Web developer from Sheboygan, Wisconsin, received a letter from the city. It demanded that she cease and desist the publication of a hyperlink on her web site pointing to the home page for the Sheboygan Police Department.

Reisinger used the website in question - Brat City Web Design, so named in honor of the Bratwurst sausage that has brought Sheboygan fame - for her web design business, and it contained links to several other public agencies besides the police department. The cease-and-desist letter did not mention any of the other links besides the one for the police department, and Reisinger promptly removed the link from her site.

After she received a call from the Sheboygan Police informing her of a police investigation into the link's presence on her site, however, Reisinger retained an attorney, who advised her to reinstate the link immediately. The lawyer, Paul Bucher, also fired off letters to the city's mayor, police chief, and city attorney requesting documentation related to the affair, and a description of the legal basis the city felt it had in demanding the removal of the link.

The following day, the city informed Reisinger that it would refrain from pursuing any legal action against her, and the mayor apologized for the whole affair in a letter to the editor of the town's newspaper.

But that wasn't the end of the story. Last month, Reisinger filed a federal lawsuit alleging that the city, particularly the mayor, Juan Perez, sent the cease-and-desist letter in retaliation for her participation in a mayoral recall campaign. Her complaint requests a judicial declaration that the city violated her First Amendment rights, as well as $250,000 and punitive damages to be determined by a jury.

Reisinger might have a case. FindLaw columnist Anita Ramasastry, an Associate Professor of Law at the University of Washington School of Law in Seattle, argues in a recent column that linking is generally protected under the First Amendment and points out that at least one federal court has agreed with that position.

While there are exceptions to this notion - discussed below - Reisinger's link to the Sheboygan police site does not seem to fall into any of them. She directed her visitors to the page for a government body meant to serve and protect the public, which is the exact sort of information-sharing that the First Amendment was established to protect.

Governments must have a compelling reason to curtail protected speech, and it doesn't appear that the City of Sheboygan had much reason to send the letter at all. Of course, the judge in the case could declare the case moot, since the city withdrew its cease-and-desist letter and never initiated any kind of formal prosecution or other legal action. So Reisinger may be in the right, but whether she gets any money or a judicial declaration in her favor remains to be seen.

Regardless of the outcome, Reisinger's case highlights the legal issues surrounding links on the Internet. Few courts have dealt directly with these issues, but the decisions that have come down illustrate the difficulties inherent in applying the law to linking.

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. ®