Is Deep Linking Legal?

What is Deep-Linking?

When people link to websites, they often do not link to the homepage. Instead they link to the sub-page that contains the information they want to link to. This practice, of linking to a sub-page deep within a website, is called “deep linking.” What is not generally known is that there is some doubt as to the legality of deep linking, and some recent court decisions suggest that deep linking might be impermissible in some cases. This essay will discuss the existing law on deep linking and its implications for future developments.

US Court Decisions

As of yet there have been no Canadian cases dealing with the issue of deep linking. The issue was, however, dealt with by a U.S. district court in the case of Ticketmaster v. Tickets.com (USDistCt – 2000 Aug 10 – FDQ4 371774). Ticketmaster, the well-known ticket broker, sought to have the website Tickets.com prevented from directly linking to the concert listings within Ticketmaster’s site, rather than linking to the Ticketmaster.com homepage. Ticketmaster later amended its pleadings and brought the suit under a different heading in 2003 (USDistCt – 2003 Mar 6 – FDCU 40574). Ticketmaster made two primary arguments about the inherent illegality of deep linking. One was that deep linking is a violation of copyright and/or trademark rights, because it allows a website to use someone else’s informational pages for its own benefit. The other was that deep linking is a form of trespass, since it consists of going into someone’s property – a website – without entering in the fashion prescribed by the owner. Ticketmaster also argued that there was a violation of its terms of use agreement.

In both hearings, the court found for the defendant and against Ticketmaster.  On the copyright/trademark issue, the court ruled that deep linking did not constitute a copyright violation, since there was no copying involved: the reader was linked to the plaintiff’s original, uncopied webpage, and he or she knew whose page it was. Similarly, there was no trademark infringement, since, Judge Harry L. Hupp said in his opinion, “there is no deception in what is happening” and the defendant was not passing off Ticketmaster’s pages as its own. As to the trespass claim, Ticketmaster also lost, but came closer to winning than on the copyright issue.

In the first decision, Judge Hupp dismissed the claim outright, saying that “it is hard to see how entering a publicly available web site could be called a trespass, since all are invited to enter.” But by the time of the 2003 decision on the amended pleadings, the decision in the case of EBay v. Bidder’s Inc(USDistCt – 2000 Dec 6 – FDCU 39242) proved influential. That case ruled that using “robots” to go repeatedly into someone else’s site could constitute trespass, particularly if it had the potential to harm the site by overloading it. Judge Hupp in the second Ticketmaster decision accordingly allowed that “the trespass theory has some merit” when it comes to the kind of deep-linking that hurts the site by slowing it down. However, Tickets.com’s use of Ticketmaster’s site was ruled not to be harmful or potentially harmful, and therefore the trespass argument was dismissed.

A Form of Trespass?

No subsequent case has dealt directly with the question of whether deep-linking can constitute trespass. We can see, then, that courts in the United States have declined to prevent defendants from deep linking. However, the Ticketmaster decision, and the EBay case, leave open the possibility that deep linking might constitute trespass if it hurts the operation of a site in one way or another. This is likely considering that U.S. courts, in cases such as CompuServe v.Cyber Promotions 962 F. Supp. 1015 (S.D. Ohio 1997), have ruled that “spam” can constitute a trespass because of its interference with the “utility” of a computer system.

If it can be shown that deep linking to a site makes it less useful – whether by slowing it down or by decreasing its ability to function in the way the owner prefers – it might be possible to show that it constitutes trespass.

Conclusion

Canadian law, as previously mentioned, has not dealt with this issue, and it is possible that it will not become a major issue.  To a large extent it seems that the debate over the issue is shifting away from the courts as more and more companies simply set up their webpages with software that can prevent deep-linking on its own. However, until the law becomes more settled, a website owner might be well-advised to refrain from deep-linking to another website if there is some reason to believe that the other site discourages the practice.  For example, if a site’s Terms of Use agreement prohibits deep linking, it would be a good idea to respect that prohibition – especially since Terms of Use agreements are themselves becoming more and more enforceable in Canada.