LINKING AND CRAWLING ISSUES IVAN HOFFMAN, B.A., J.D.

        What is interesting from a legal evolutionary standpoint is that, in the absence of specific statutory prohibitions, courts have resorted to more traditional legal theories upon which to base their decisions.  A sort of dusting off and manifest stretching (though not breaking) the common law which is the foundation of most American jurisprudence.

        In an early case, Microsoft had a site that linked visitors who wished to purchase concert tickets to pages on the Ticketmaster site where the customer could the order and indeed pay for those tickets.  While Ticketmaster made its regular commission on those sales, Ticketmaster sued Microsoft contending that the links so created were “deep links,” meaning that the links took the visitor not to the Ticketmaster home page but instead to the order page which was in fact several levels below the main page and in doing so, the visitor could then by-pass the intervening pages on which Ticketmaster sold advertising.  As a result, Ticketmaster argued, Ticketmaster could not deliver impressions or click-throughs to its advertisers from those pages that might otherwise have been deliverable had the visitors had to traffic through those intervening pages.  The case was settled.

        However, Ticketmaster later sued Tickets.com on a number of grounds but let me limit this discussion to the deep linking issue.  As to that issue, the trial court ruled that at least as to a ruling on what is known as a Motion to Dismiss, which is not an actual trial, Ticketmaster had stated a claim for relief.  The court decided that Ticketmaster could go to trial on the basis of claiming that by doing the same thing as Microsoft had done earlier, Tickets.com might be considered to have interfered with Ticketmaster’s prospective business advantage and contract rights with its advertisers.

        The Court ruled however that linking, in and of itself, is not a copyright infringement since there is no actual copying involved.

        Linking can also create potential problems if the site doing the linking creates a false impression about their relationship to the site linked.  Additionally, the linked site may complain if the link misrepresents the nature of the linked site or casts it in an unfavorable way.

        In another of these cases, the Washington Post sued a site called TotalNews.com claiming that the defendants were linking to the plaintiff’s news content but as that content appeared on the TotalNews site, it was within a frame that contained banner ads as well as site specific content belonging to TotalNews.  As a result, plaintiff argued, TotalNews was able to sell advertising on the TotalNews site based on eyeballs that were actually viewing the Washington Post content.

        The case was eventually settled as well.

        The foundational legal issue here is whether or not there is copyright or other protection in “data” and, irrespective of the answer to that issue, whether or not the site that is “crawled” may avail itself of other legal theories of protection.

        It would unduly lengthen this article if I were to try to deal with the many sub-issues with regard to the protection of data.  Read “Database Copyright Protection (Or The Lack Thereof)”.   Suffice it to say, as a general rule, the law essentially says that if underlying facts, data, cannot be protected by copyright, then the time it took to create the database (i.e. “the sweat of the brow”) is also not protectable unless the compilation (i.e. the database) also satisfies the requirements of the copyright law independently.

        With regard to the crawling issues, however, some of the cases have dealt with spiders or “bots” that have taken such data from one site and reproduced it on another site.  Such data included price comparisons, data base information such as domain registration information, concert listings and the like.  The legal theories used by plaintiffs and in some instances adopted by the courts have included trespass to chattel (a chattel is an arcane, legal term meaning personal property and it was stretched to include a bot accessing another site’s servers or web site i.e. chattel), misappropriation (meaning an unauthorized “taking” of property), unfair competition as well as more traditional legal theories such as copyright infringement.

        If you are a web site owner or a designer or developer, you must examine your contractual provisions to see how linking or framing may create liability or exclusion from liability for you.  When a client engages a designer/developer, often the relationship involves the designer/developer creating links to other sites, however related to the site of the client.  In the contract between these parties, the responsibility for such links should be clearly set forth in the event the site to which the link points files a claim.  Is the link the responsibility of the client or the designer/developer?  What happens if a claim is filed?  For related issues, see “Keywords, Meta Tags And Trademarks.”

        If you are a software developer and you license your searching technology or if you are a licensee of such technology, you must be aware of the need to cover these legal issues in your license agreement including representations and warranties and corresponding indemnities.

        Several years ago, probably no one thought that linking was a problem.  Then came frames and their accompanying problems.  Then came bots and…well you get it.

        As the Net evolves, so too does the “Attorneys Full Time Employment Act.”

© 2001, 2003 Ivan Hoffman.  All Rights Reserved.