No Trespassing! Have License, Can Hyperlink. Sylvia Mercado Kierkegaard [email protected] Abstract prompted the filing of lawsuits involving the issue of unsolicited hyperlinking. The courts have applied the The burgeoning amount of information on the Internet traditional doctrine of copyright and trademark in some has given rise to the need for efficient methods to link instances , but in general, courts, most of the times, are at web pages. It has not only grown with the expansion of the loss how to deal with this kind of situation. Linking Internet, but has resulted in numerous disputes regarding documents is still a relatively new phenomenon. its legality. Linking to and framing of content contained Deep linking still appears to be in legal limbo. The on an unrelated web site is controversial. Under current legal answer is by no means clear and commentators hold copyright law, almost any artistic or linguistic widely diverging opinions. Different courts will arrive at composition which may be posted on a web site is likely to different results. The purpose of this paper is to pinpoint be copyrighted. some of the major problems arising from the interaction of Numerous cases have been brought before various copyright law and the Internet technologies. In particular, national courts claiming that hyper linking and framing this article analyses the assertion that associational tools infringe copyrights, trademark dilution, unfair on the Web may infringe copyright, trademark, and fair competition, breach of confidentiality, and trespassing. competition. The courts have applied the traditional doctrine of copyright and trademark in some instances. But in general, 2. Linking courts are at loss how to deal with this kind of situation. The legal issue confronting courts today is whether a Tim Berner Lee invented the World Wide Web Website sponsor may implement such a link unilaterally (WWW). He saw the possibility of using hyperlinks to and without an agreement from the owner of the third link every unit of information to any other unit of party Website. Does the proprietor of the site have any information over the Internet. The term "hyperlink" was right to control who links to his site? Could deep linking, coined in 1965 by Theodor Nelson who was inspired by framing, spidering and use of meta-tags constitute the ideas espoused in the essay “As We May Think." The copyright infringement, unfair competition, trademark essay described a microfilm-based machine in which one dilution, or other possible causes of action? Are links could link any two pages of information into a "trail" of copyrightable? It seems the jury's still out when it comes related information, and then scroll back and forth among to deep linking, framing and meta-tags. pages in a trail as if they were on a single microfilm reel. Nelson transposed Bush's concept of automated 1. Introduction cross-referencing into the computer context, made it applicable to specific text strings rather than whole pages, The emergence of technologies is facilitating the rapid and generalized it from a local desk-sized machine to a dissemination of ideas and information to almost every theoretical worldwide computer network. market in the world. The Internet has been designed to be Hyperlinks are the most essential ingredient of all a place where free global linking of information and hypertext systems, including the World Wide Web. A Web exchange of ideas are vital elements. With the advent of page is constructed using Hypertext Markup Language computers as a basic tool of communication, marketing (HTML), a basic text coding technique which provides and information, a cyber society has come into existence display instructions to a Web browser program viewing linking people and organizations. The burgeoning amount the file which generates the particular Web page. One of information on the Internet has given rise to the need particular type of HTML tag is the hyperlink. HT in for efficient methods to link web pages. Hyperlinks, HTML stands for Hypertext. Hyperlinks allow for easy frames, and meta-tags are just a few of the associational navigation within the site or can lead to other location on tools available. However the use of these tools has created the web. Hyperlinks are often represented as bolded or a number of serious legal issues. In particular, these tools underlined text, or as an image. This is because most can have a significant impact on intellectual property browsers default settings are set up to display hyperlinks rights. These new technologies have created new types of in that manner. By "clicking" a mouse or other pointing situations, which pre-existing law could not have device on a hyperlink, the contents of another Web page predicted, and, therefore, cannot effectively control. referenced by the hyperlink are then displayed by the Web Courts are forced to grapple with legal ambiguities in browser (Kuester, 1998). modern Internet problems. One of the most significant There are three different classifications of links: legal questions surrounding these emerging Internet intra-page, intra-system, and inter-system. Intra-page technologies involves trademark infringement, unfair links connect different parts of the same document. competition and copyright. The explosive expansion of Intra-system links connect different documents on the hypermedia usage, particularly via the Internet, has same server. An inter-system link connects documents on different servers. Linking is very important in advertising. Many The Web is a system of hypertext links. Where a link is individuals, businesses, and organizations are faced with created not to the home page of the target site, but to the the similar challenge of ensuring that interested parties subsidiary page, this is known as deep linking. Basically, can find their websites. Business organizations welcome it is referencing to pages within a site, not just the front linking from others because it increases traffic, page. The technology behind the World Wide Web- the advertising rates, and, by inference, revenue. Links make Hypertext Transfer Protocol (HTTP) - does not actually the web manageable to surfers, enabling users to easily make any distinction between deep links and any other find useful information on topics of interest. The link can links- all links are conceptually equal. Deep-linking send users to the advertiser’s own information or to public results in the practice of bypassing introductory home documents of others. Most companies are delighted to be pages and thereby bypassing a site’s own content and linked with others. It is one of the ways a company can use advertising. Another type of linking is in-line linking, a to increase sales via the Internet. means by which the author/owner of a webpage Hyperlinking enables a Web surfer to connect to other incorporates into their own webpage copyrighted Web pages and retrieve information within seconds and materials (such as graphic files) taken from another without having to perform new searches or other complex person’s website or server (via a link). tasks. A Web page can contain as many or as few Some right holders oppose deep linking. The reason is, hyperlinks as the creator wishes. These branching of course, economics. Website owners sell advertising in mechanisms may reference Web pages both within and their WebPages. If someone created links that bypassed outside of the Web site, though it is primarily the linking all those advertisements, then that money would to outside Web pages, which raises intellectual property potentially bypass them. Cross hyper linking is, however, questions. It should be stressed that using the link does not acceptable to website owners. Cross-hyper linking or cause any copy of the target page to be created, at any reciprocal links is the preferred method of promoting stage, on the author’s Web server. When the link is clicked business online by website owners. Reciprocal linking is the user’s browsers establishes a connection direct to the simply exchanging links with other webmasters in order to target site and fetches the target page directly from it, just boost link popularity. It involves sending e-mails to as if the user had typed in the URL on his browser to go to webmasters of sites with relevant and complementary the site. The user receives the target page directly from the content. target site and not through the author’s site. The link may In general, three types of linking agreements exist: be to a specific item on the other site and cause browsers mutual linking agreements, one-way linking agreements, to bypass information or advertising that the site owner and cross-linking (co-branding) agreements. Mutual would have wished all visitors to the site to see. This could linking agreements involve no revenue, as each party affect the potential advertising revenue from the site it expects to benefit from cross-marketing and increased carries and affect sponsorship agreements. A link may be sales. The second type, one-way linking agreements, are regarded as nothing more or less than a footnote or typically used in arrangements with affiliates or associates, bibliographic reference pointing the user to related whereby brand-name companies provide "tagged" links to materials of interest while also transporting the user there. affiliates for visitor referrals in exchange for commissions. Another way to look at it is a form of free rider The third is reciprocal or cross hyperlinking (Kiritsov, misappropriation of property or unfair competition. The 2000),which most search engine optimization (SEO) sites originating Website benefits, particularly if it has recommend because this will help in the search engine advertisers or is a single sponsor commercial site, but it ranking more than having no linking program at all. may do so at the expense of the linked Web site.