The Web was designed to be a universal space of information, so when you make a bookmark or a hypertext link, you should be able to make that link to absolutely any piece of information that can be accessed using networks. The universality is essential to the Web: it looses its power if there are certain types of things to which you can?t link.
Tim Berners Lee ? The man who created the World Wide Web.
Despite the prevailing ethos of free linking on the Internet, it is not always permissible to link to other websites or more specifically to link to certain webpages. Generally it depends on the circumstances of each case. In most cases linking to the?homepage of a website is fine and its often the solution for pointing to content you do not have permission to distribute but there are caveats. There are also instances where linking is expressly prohibited in the terms and use section of a website or specific types of linking may also be expressly prohibited. Let us look at some of these types of links and the legal considerations for each.
Surface linking
The famous Scottish case concerning link law was?Shetland Times Ltd v. Jonathan Wills and Another?where the plaintiff, Shetland News, linked to various articles on the respondent?s (Shetland Times) website thus resulting in users bypassing the front page of the Shetland Times website. When the court granted an interim interdict pending the final judgment, the legal question concerned whether the headlines qualified as a literary work and therefore qualified for copyright protection.??The issue was settled out of court with a negotiated linking agreement between the parties and provided no legal precedent for the issue of copyright violation due to unauthorised linking.
In?Kelly v. Arriba Soft?Corp?however, the courts held that the linking of the images on the website in question constituted fair use and was permissible. The case involved a dispute between the plaintiff Kelly who was a commercial photographer and Arriba Soft Inc, a search engine company ? the search engine site was indexing images from the web to enable users to search for images easier. The images were presented in thumbnail form and included artistic works from the plaintiff ? once clicking on a thumbnail, the user was taken to the image on the plaintiff?s site via a deep link. The plaintiff claimed copyright violation for the unauthorised use of the images and linking.
Inline linking
Inlined links?allow one to essentially import an object from another website and incorporate it in one?s own website. Express permission may be needed here because of the way the information is presented. Here case law provides mix judgements, mostly favoured towards permissibility of this type of linking because technically inline linking allows for display of content but the content resides on a 3rd party server therefore the fair use defense has been argued successfully in various US cases. It does depend on the facts and circumstances of each case and the same defense won?t succeed in all instances ? there has been a case where?unauthorized inline linking to an image was held to violate the copyright owner?s right of public display.
My advice would be to check a website?s terms and conditions and if there are rules relating to linking, then abide by them. If there are no rules stated then look at the object you wish to provide an inline link to ? does it infringe the copyright of the owner? Does it have the necessary permissions to be distributed via the website? Chances are that if the object infringes on copyright (example: various Youtube videos that are distributed illegally) providing an inline link to it might amount to illegal distribution or action by the copyright owner who can request that you remove the link to the content.
Deep linking
Deep linking is when you provide a link to a specific page on a website which is not a homepage ? a deep link on this site would be to a post or page or an object in a post or page. ?Here case law has provided mixed results ? ?however there has been successful arguments for copyright violation because bypassing the homepage meant loss of earnings through bypass of advertising. There has also been arguments of alleged passing off ? where its been alleged that persons have presented the information in such a way as if they were the copyright owner, therefore violating the true copyright owner?s rights.
Framing
Framing refers to the structuring of a webpage into various sections ? each of these sections can be coded to pull in content from various sources and to present that content as specified on the site. ?As with the case of deep linking, there are quite a few case law examples but with mixed results. The main issue is the passing off potential of framing since the content of other websites can be presented on the page in a way that leads users to think the content belongs to the page?s copyright holder. Framing not only raises potential copyright infringement claims but also trademark claims so unless you have the permission to pull in content from other sites via framing it would be best to steer clear from this practice and to rather ask permission.
The image used as the background image above is computer room: view 2 by blakespot and is governed by a CC-BY license.
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