Legality of
'Deep Linking' Remains Deeply Complicated
By CARL S. KAPLAN
NYTIMES ©
April 7, 2000
When a federal judge issued a decision
last week in a case involving "deep linking,"
many reports suggested that the controversial Internet
practice was now unambiguously legal. But the story is
more complex than that. In fact, deep linking -- the
practice of linking to a page deep inside another Web
site, bypassing its home page -- still appears to be in
legal limbo.
The latest confusion about linking
stems from a seven-page decision issued on March 27 by
Judge Harry L. Hupp of Federal District Court in Los
Angeles in the closely watched case of Ticketmaster
Corp. v. Tickets.com Inc.
Ticketmaster Online-CitySearch Inc.
and its majority shareholder Ticketmaster Corp. operate
a Web site offering event tickets that Ticketmaster has
an exclusive right to sell. The site's home page
features advertisements and a directory of interior
event pages, which have basic information like a
concert's time, place and date. They also include
information about how to order tickets through the site
or by other means.
Ticketmaster and Ticketmaster Online
sued a rival company, Tickets.com, last July in United
States District Court for the Central District of
California. Ticketmaster claimed that the Tickets.com
site featured "thousands" of links that
transported consumers to selected event pages deep
within Ticketmaster's own site, bypassing its home page
and other pages.
The suit also claimed that through the
use of automatic software "spiders,"
Tickets.com systematically copied and extracted
protected editorial material from Ticketmaster Online's
event pages and placed it in a new form on Tickets.com
pages. The suit also accused Tickets.com of publishing
false and misleading information about Ticketmaster's
ticket availability.
Ticketmaster said that Tickets.com's
deep linking was wrong and harmful for several reasons.
First, it claimed that the practice violated key
sections of its "terms and conditions" --
legal fine print on the site that prohibits
"commercial use" of the Ticketmaster pages and
also bans unauthorized linking.
In addition, Ticketmaster contended
that deep linking interfered with its economic
relationships with advertisers, who paid handsomely to
advertise on the site's home page. Finally, the company
said that Tickets.com was guilty of "passing
off" and "reverse passing off" -- forms
of unfair competition -- because consumers might
confusingly conclude that Ticketmaster and Tickets.com
were connected in ways detrimental to Ticketmaster and
beneficial to Tickets.com.
This is not the first time that
Ticketmaster has gone after a deep linker. It sued
Microsoft for alleged deep-linking wrongs at its
Sidewalk city guides a few years ago. The companies
settled last year.
In response to the latest lawsuit,
Tickets.com denied any wrongdoing. It also filed a
motion to dismiss all 10 of Ticketmaster's legal claims,
which addressed linking and non-linking conduct. It was
in the context of ruling on the preliminary "motion
to dismiss" that Judge Hupp issued his order last
week, allowing some claims to proceed and dismissed
others.
Some media reports on the decision
emphasized Judge Hupp's comment that "hyperlinking
does not itself involve a violation of the Copyright Act
(whatever it might do for other claims) since no copying
is involved." And in another part of his opinion,
Judge Hupp concluded that "deep linking by itself
(i.e., without confusion of source) does not necessarily
involve unfair competition."
These comments appear to suggest that
linking has a green light, at least as far as Hupp is
concerned. But viewed in the context of the entire
ruling, the statements are quite limited. For one thing,
Ticketmaster did not claim in its complaint that deep
linking was copyright infringement, so the court's
comment in that regard was not greatly meaningful.
Also, Judge Hupp allowed a few claims
that attack deep linking to proceed. For example, he
allowed the passing-off and reverse-passing-off claims
to remain, as well as the interference claim. And
although he dismissed the breach of contract claim, he
granted Ticketmaster permission to file an amended
complaint with facts showing that its "terms and
conditions" created an enforceable contract, seen
and agreed to by Tickets.com. A lawyer for Ticketmaster
said the company will file an amended complaint shortly
that "we believe will satisfy the court's
requirements."
Indeed, it can fairly be said that
Judge Hupp left the door open for a link-averse Web
operator to ban linking via a contract that a Web surfer
is forced to agree to before being allowed to enter a
site. He implied that those who deep link in violation
of this conspicuous and assented to
"agreement" would have a potential breach of
contract problem on their hands.
In short, the linking controversy
continues. The next turn in the case may occur next
month, when Ticketmaster is scheduled to argue that the
court should preliminarily stop Tickets.com from linking
and spidering.
"I certainly don't think that
this is a conclusive decision that says 'linking is
O.K.,' which a number of people have characterized it
as," said Jessica R. Friedman, a lawyer with Reboul,
MacMurray, Hewitt, Maynard & Kristol in New York who
specializes in intellectual property and the Internet.
"The way I read this is, that
when you run through all the claims, and after you
consider what the judge left in, deep linking under this
ruling may constitute passing off, reverse passing off,
tortious interference and even breach of contract,"
she said, adding that she believes it may be difficult
for Ticketmaster to actually win on its linking claims.
For now, Friedman said that she is
advising her clients that it is fine to link to
another's home page, but not to deep link without
permission. "The law on linking is still in a gray
area," she said.
Charles Conn, chief executive of
Ticketmaster Online, said in an interview that his
company was generally in favor of linking, but he drew
the line at deep linking when it is "wholesale and
systematic," employed by "a direct
competitor" and coupled with other conduct that he
deemed objectionable, like spidering.
Some people who use the Internet have
a "knee-jerk" viewpoint that any type of law
restricting linking is wrong, Conn said. But "the
Net is mature enough now that we should be able to make
distinctions" regarding types of deep-linking
conduct, he said.
Mark Sableman, a partner and
intellectual property expert at Thompson Coburn, a St.
Louis law firm, agreed that Judge Hupp's ruling was
rather limited. But he said that some of the court's
statements may be picked up by other courts in other
cases.
"Judge Hupp at one point said
that a link is a kind of library card that directs you
to a reference," Sableman said. "That's a very
useful analogy to think with. It shows that a link does
not create a deliberate association that allows someone
to bask in another's glory, but rather is an automated
service that beams you to where you want to go."
Jeffrey R. Kuester, an Internet law
specialist and partner at the Atlanta law firm Thomas,
Kayden, Horstemeyer & Risley, said he hoped that
Judge Hupp would tread carefully as the Ticketmaster
case progresses.
"You will have a chilling effect
on all kinds of linking if you say that certain types of
linking are bad," he said.
CYBER LAW JOURNAL is published weekly,
on Fridays. Click here
for a list of links to other columns in the series.
Related Sites
Copy
of Judge Hupp's ruling, from gigalaw.com
Ticketmaster/Ticketmaster
Online-CitySearch
Tickets.com
The
Link Controversy Page, compiled by Stefan Bechtold
"Link
Law: The Emerging Law of Internet Hyperlinks," by
Mark Sableman
"Hyperlinks,
Frames and Meta-tags: An Intellectual Property
Analysis," by Jeffrey R. Kuester and Peter A.
Nieves
Internet
links of interest to Cyber Law Journal readers
Related Articles
DVD
Lawsuit Questions Legality of Linking
(January 7, 2000)
Copyright
Decision Threatens Freedom to Link
(December 10, 1999)
Carl S. Kaplan at kaplanc@nytimes.com
welcomes your comments and suggestions.
