One of the most fundamental characteristics of the Internet, perhaps the one feature which defines the vast, interconnected array of communications and computer systems, is the ability to direct users seamlessly from one point to another. That feature is generically referred to as “linking.” Linking takes many forms, and depending on such factors as the content, the context, and the relationship between the two sites involved, the practice gives rise to many legal issues and several unresolved questions.
If you are operating a commercial website, you have a strong interest in preserving your ability to remain the primary beneficiary of whatever profits are to be gained from the existence of your site. If others can simply link to points within your site, avoiding your registration process or your advertisements or whatever else generates revenue, then you are being deprived of the value of that content. On the other hand, if you view the Internet as a conduit for the free flow of information, every meaningful line drawn between any two points adds value to the equation.
Because the motivations of both sides are understandable and their arguments compelling, the stage is set for legal battles. Those conflicts take many forms. One form, copyright infringement, is based on the idea that the site which links to the second site has misappropriated copyrighted elements in so doing. One of the threshold requirements for copyright infringement, however, is that the material must be copied without permission. Since most linking involves simply redirecting the user’s browser to the content, no copy is made.
A recent court case involving an infringement claim by a photographer against a search engine was a notable exception. There, the search engine results displayed a thumbnail version of images, which if selected by the user, caused a copy of the full image to be displayed. The court found the search engine liable for copyright infringement because the search results contained more than just a link to the photographer’s website, they also contained an unlicensed copy of the images. The lesson was fairly clear: you can redirect users to copyrighted material, but in so doing, you cannot make use of a copy of such material.
July 2002
