1999 B.C. Intell. Prop. & Tech. F. 060504
Web Site Linking: Right or Privilege
Richard A. Spinello fnA
June 4-5, 1999
the World Wide Web continues its exponential growth, disputes about the proper
way of linking from one Web site to another will become more heated and
conspicuous. Although there have already been several major linking
controversies such as the Ticketmaster and Shetland News cases, there is little
legal precedent about this matter. Further, the moral propriety of linking in
different forms remains a nebulous and largely unexamined topic.
this concise paper we will seek to explore some of the moral dimensions of this
issue. After clarifying the basic mechanics of linking, we will briefly review
two major linking controversies which have emerged as paradigm cases, and which
can serve as a concrete guide for our discussion. We will then consider some
of the applicable legal principles such as copyright infringement and trademark
dilution. This will set the stage for an explicit moral analysis of some of
the potential problems triggered by linking from one site to another. Although
we fully appreciate the dangers inherent in propertizing the Web, we will argue
that the "right" to link to another Web site must be tempered and limited by
the fact that a Web site is a form of intellectual property. Therefore, its
author and "owner" should have the prerogative to control who links to that
site and how they do so. We will contend, for example, that if a target Web
site is opposed to "deep linking" that wish should be respected. On the other
hand, all Web site authors must respect the fact that linking is the heart and
soul of the Web. Therefore any arbitrary or excessive restrictions against
linking should be eschewed for the sake of the common good of open
communications and maximum porosity in the Internet environment. It is obvious
that this argument turns to a great extent on the notion that Web sites are
property, and thus part of this analysis will seek to develop and defend that
main concern here will be the acceptablity of deep linking without permission
and the importance of respecting copyrighted material in the linking process.
There are many other aspects about linking such as one's liability for linking
to a site with illegal material, but those complex topics will be left for
The Mechanics of Linking
Web site refers to text, graphics, or media content that has been put into an
area of the Internet known as the World Wide Web. Each Web site has a unique
address or URL (Universal Resource Locator) such as www.bc.edu. A Web site
typically consists of many pages which are organized and controlled from a
beginning or "home" page.
simply, a link is a connection between two different Web sites. A hyperlink
within a Web page contains the URL for another Web site which is activated with
the click of the mouse. While most links take the user to the other Web site's
home page it is possible to bring the user to subordinate pages within the Web
site. This practice has become known as "deep linking." The hyperlink text
itself can take many forms. It can be the name of the linked to Web site or a
description of what is to be found at that Web site (usually the name or
description appears in highlighted text). It can even take the form of a
revealing graphic or image such as a company logo.
are two types of links: an HREF link which instructs the browser to locate
another web site and provide its contents for the user, and an IMG or "image"
link. An IMG link instructs a browser to enhance the text on the user's Web
page with an image contained in a separate file usually located at a completely
different web site. For instance, if one is writing a narrative on Monet, the
French Impressionist painter, one can include an image of a Monet painting from
the Boston Museum of Fine Art's on-line image file to provide an illustration
that will accompany that narrative. Unlike an HREF link the user cannot really
discern that the image is coming from another source since there is a seamless
integration of text and image. It is therefore more customary for users to
seek permission for an IMG link. On the other hand, there is a general
sentiment on the Web that it is not necessary to seek permission for an HREF
mechanics of the more common HREF linking are simple enough. A link is merely
a short line of HTML code such as the following:
<A HREF tells the browser that this is a link to another Web page to which
the user should be taken. The address or URL of that Web page
(http://www.bc.edu) follows. And the words "Boston College" represent the text
that appears on the screen -- this is the only thing which the user actually
sees. When the browser encounters this code it goes out to the Internet and
locates the Boston College Web page. It then sends a copy of the Web page to
the user's browser.
the sake of clarity in this discussion we will refer to the site which is being
linked to as the "target" Web site. The site containing the hypertext link
will be called the "source site."
value and social benefits of linking are manifold and beyond dispute. Most web
pages have multiple links to other web pages and they are also the target of
many other links. Links from one Web site to another permit instantaneous
access to multiple sources of information. Linking allows users to easily
follow a complex and intricate trail of research. Moreover, each user can
determine how extensively or deeply to follow that trail. Linking is the
essence of the World Wide Web, and there is little doubt that legal or
technological constraints on linking would have substantial negative
ramifications for the Web.
most users concede that there is nothing wrong with linking even without
getting the target site's permission, there are problems with the way in which
some source sites do their linking. Some of the more prominent and common
problems are highlighted in the following two case studies.
Ticketmaster v. Microsoft Case
1997 Ticketmaster Group Inc. filed suit against Microsoft for federal trademark
infringement and unfair competition. The facts of this case are clear enough.
Microsoft operates a Web site called Seattle Sidewalk which functions as a
guide to recreational and cultural activities in the Seattle metropolitan area.
Seattle Sidewalk provided many links to related Web sites including a link to
Ticketmaster, which operates a popular ticket selling Web site. That link,
however, bypassed the Ticketmaster home page and went directly to the
respective pages for purchases to events listed in the Seattle Sidewalk page.
For instance, a listing on the Seattle Sidewalk page for the Seattle Symphony
would include a direct link to a Ticketmaster sub-page that would allow users
to purchase their symphony tickets.
is a prime example of "deep linking," and Ticketmaster raised a number of
objections to this practice. According to Ticketmaster, by bypassing their
home page Seattle Sidewalk users were not being exposed to the extensive
advertising and announcements which were posted there. In Ticketmaster’s
view, this diminished the value of that advertising and ultimately the rates
that could be charged to future advertisers. Ticketmaster also complained that
Microsoft was able to generate advertising revenues on the basis of this link
because Microsoft posted a banner advertisement on the same page it displayed
the Ticketmaster name and link. And, according to Wagner (1997) Ticketmaster
alleged that the links were done in such a way that they “presented
information incorrectly and out of context.”
case certainly raises the fundamental problem with deep linking which
circumvents advertising and other identifying or promotional features on the
home page. Deep linking not only reduces the value of the target site's
advertising but deprives that Web site of its proper exposure and recognition.
the other hand, it could be argued that Ticketmaster has no real quarrel here.
Its Web site information is at least quasi-public. Ticketmaster therefore
should not interfere with the Web's free flow of information. In its legal
defense Microsoft argued "that Ticketmaster breached an unwritten Internet code
in which any Web site operator has the right to link to anyone else's site"
(Tedeschi, 1999). Microsoft also argued that it had a First Amendment right to
publish this public information.
was an out of court settlement to this lawsuit in February 1999. Although the
terms of the settlement were not disclosed Microsoft did agree to link to
Ticketmaster's home page instead of to its sub-pages. The settlement was
actually a disappointment for those searching for a firm legal precedent about
controversial linking activities. As a result, at least in the United States
there are curently no unambiguous legal guidelines on the practice of deep
a similar case the Sheland Times newspaper in Scotland sued the Shetland News,
a news oriented Web site, alleging that the News linked to the Shetland Times
Web site and displayed its headlines without any attribution. The Shetland
News is an online daily newspaper which posted links to the Shetland Times
Online. The News used actual Times headlines as the text of the hypertext
link. For instance a link on the Shetland News home page might be "New Prime
Minister Elected," which would link directly to a story in the Shetland Times
with the exact same headline. The link also bypassed the Shetland Times home
page which had copious advertising. In October 1996 Scotland's Court of
Session banned the links, "finding it plausible that a headline is a literary
work and that the News's practice of incorporating the Times's headlines
verbatim in its link lines violated the latter's copyright" (Kaplan, 1997).
The Scotish Court did not rule on the matter of deep linking.
the Court's ruling the Shetland News terminated its links to the Times Web page
instead of seeking a legal truce. The feud continued, however, even after the
News terminated its links. The Time's posted a story on its Web site that
remained for many months describing the New's practice as a "parasitic
activity." The News continued to proclaim that it had done nothing wrong. In
their view they were merely providing the Times with additional readers.
one might expect, and as these two cases imply, the law in this area is still
rather inchaote and ill-defined. There are, however, legal principles that
appear to be applicable to linking disputes. One such principle is copyright
infringement. A copyright can be violated in a number of ways. For example,
the copyright holder has the only legal right to reproduce the work in question
(aside from instances of fair use). This aspect of copyright law probably does
not apply in most linking disputes. For example, Microsoft really did not copy
anything from the target Web sites. On the other hand the Shetland News did
copy the Times' news headlines, and that could be construed as a copyright
violation. From a legal standpoint, therefore, copyrighted material such as
artwork or headlines should not be used to identify the hypertext link.
also confers the exclusive rights to display and distribute the copyrighted
material. The right to display is probably not infringed by linking.
According to Jakab (1997), "the display in this context is probably best
understood to be consisting in the copyright holder's site from the moment the
content is place on the Web, not in the user's browser; if the act of browsing
were to implicate the display right, there would be little to do on the Web."
One could argue that Microsoft's Seattle Sidewalk is "distributing"
Ticketmaster's Web page so that its users can conveniently purchase their
tickets. Legal scholars contend, however, that any appilication of such a
broad interpretation would have devastating consequences for the Web, and hence
it is unlikey to prevail in any Court of Law.
legal principle which may have more applicability is trademark infringement or
trademark dilution. Trademark infringement arises when one uses the trademark
of another in a way that creates confusion for consumers or in a manner that is
deliberately exploitive or deceptive If a new athletic shoe company used the
Nike "swoosh" trademark to help sell its shoes there would be a clearcut case
of infringement. A link that leads an end user to falsely believe that a Web
page is affiliated or approved by the target Web page could be a candidate for
trademark infringement. An example could be an IMG link that puts another's
trademark on the source Web page to create the impression of an endorsement.
Deep linking per se, however, does not necessarily imply such infringement.
dilution occurs when a trademark is ridiculed or overused by others in such a
way that the value of the trademark is diminished. Does the use of a trademark
or logo to identify the hypertext link constitute dilution? There are as yet
no legal decisions on this matter, but it appears difficult to make the case
that this would really cause any serious dilution.
conclusion, although certain linking activities such as using another's
copyrighted material as part of the hyptertext identification or even loading
in image files without attribution may violate current copyright laws, other
activities such as deep linking do not seem to be covered by such laws. This
creates a vacuum which can certainly be taken advantage of by Web site
Ethical Dimensions of Linking
is little doubt that linking is an important activity that yields many social
benefits for the World Wide Web and its millions of users. There is also no
doubt that there is some legal ambiguity about the proper way to conduct
linking activities. But that does not mean that users can link with impunity
or without considering the moral implications of their actions. This brings us
to the central question of this paper:
can users link with integrity
Even if deep linking is legally permissible at this point thanks to the lack
of a clear precedent, should it be morally acceptable? Are there other aspects
of linking that are problematic from a moral point of view? Or is there an
intrinsic right to link that supercedes all of these claims?
notion that users have a right to link to any portion of another web site,
i.e., the home page or a subordinate page, is certainly widespread. Lawyers
and jurists, for example, who defend this position argue that one's mere
presence on the Web is an implied license to link. Further, if there is
concern about loss of advertising revenues by linking to sub-pages instead of
the home page, the remedy is simple: place ads on the sub pages as well the
some extent, the moral resolution of this issue depends upon whether or not a
Web site is common or private property. When authors create Web sites and put
them on the World Wide Web do those sites in effect become part of the Internet
commons and does this give others an implied license to link to those sites in
any way they choose? Or are they still the intellectual property of their
owners despite their public and social nature?
our view, a compelling case can be put forward that a Web site should be
considered as the proprietary and private property of its author and owner. We
can cite at least two familiar philosophical arguments to support this claim.
The first is Locke's "labor-desert" theory. Recall the essentials of that
theory: people have a natural right or entitlement to the fruits of their
labor. Thus, if someone takes common, unusable land and through the sweat of
the brow transforms it into valuable farm land that person deserves to own this
land. Locke's basic argument is that labor is an unpleasant and onerous
activity and hence people do it only to reap its benefits; as a result, it
would be unjust not to let people have these benefits they take such pains to
procure. In short, property rights are required as a return for the laborers'
painful and strenuous work.
a Lockean perspective, therefore, there ought to be property rights in Web
sites because their value is based entirely on someone else's labor to
construct and set up the site.
production of a Web site is often a labor-intensive activity and this effort
should confer a property right for those who made the investment of time and
effort to build that site.
the utilitarian argument that ownership rights are justified because they
maximize social utility and provide an incentive to build future web sites is
also apposite. Jeremy Bentham justified the institution of private property by
several arguments but the most germane is that knowledge of future ownership is
an incentive to work hard to create or improve one’s property. According
to Hardy (1996, par. 35), “this rationale directly applies to the
creation and improvement of intangible property. . .[and] underlies the notion
of copyright and patent laws. . .which exist to provide the incentive for the
creation of works of authorship and technology.” It surely seems
reasonable to conclude that the prospect of future ownership and all that it
entails is an incentive for the creation and embellishment of Web sites, which
require a significant investment of time and labor. To some extent, then, a
recognition of private property rights in a Web site does provide an incentive
to develop new sites, since developers will be motivated by the realization
that they will retain firm control over the accessibility to these sites. Part
of exercising that control is ensuring that visitors are exposed to the
homepage so that advertising revenues will not be compromised.
now almost all Web site owners encourage visitors and linnkds from other Web
sites, and this is as it should be. The Internet should be a public place, an
open forum for the exchange of ideas and information. That does not imply,
however, that Web sites are actually common or public property, fair game for
manipulation by other Web sites, users, or even hackers.
a Web site is a form of private intellectual property, there are a number of
relevant points to be drawn from this conclusion. It must be understood that a
property right is a right of ownership, the right to use or the right to
possess, "that is to exclusive physical control of the thing owned; where the
thing cannot be possessed physically, due, for example, to its 'non-corporeal'
nature, 'possession' may be understood metaphorically or simply as the right to
exclude others from the use or benefit of the thing" (Honore, 1961, p. 107).
Indeed, the right to exclude is the most fundamental property right of an
owner. It follows therefore that Web site owners should have the right to
exclude others from use and the right to control how their
“property” is utilized by others.
a relevant moral principle here seems to be
self-determination, that is, the right to control the disposition of what one
the Web site author’s autonomy is duly respected, other Web site
publishers will refrain from imposing their activities such as deep linking on
fundamental argument then is that Web site authors as property holders should
have full control and autonomy over their sites. This implies that they should
be able to determine how source Web sites do their linking. Further, since
links do establish a connection between two businesses or institutions, Web
site authors should have the right to restrict links from certain sources when
such a connection might be a source of embarrasment. If they prefer direct
links to the home page to maximize advertising revenues or otherwise increase
exposure to announcements there, that preference should be respected by the
source Web page.
are many good reasons why a target Web page would have such a preference. As
we have seen in both the Ticketmaster and Shetland cases, the loss of
advertising revenues is certainly one valid reason. There may also be reasons
based on a concern for aesthetics or the artisitic integrity of a particular
Web site's presentation. Let's assume that an artist arranges a Web site with
images of her paintings along with some descriptive text; she arranges them in
a certain way to show the progression in her work. She wants the works viewed
in conjunction with the text and in a certain order. Shouldn't she have the
right to restrict individuals from linking to a work in the middle of this
presentation or from linking to an image without its accompanying text?
Respect for her autonomy and her right to control activities involving her Web
site implies a moral imperative to refrain from deep linking in such situations.
autonomy and control, however, must be balanced with the recognition that
linking is a vital activity for the Web which furthers the common good of open
communication, that is, the free exchange and free flow of ideas and
information. Respect for this common good should set some reasonable limits on
the property right enjoyed by Web site authors. One way of achieving this
balance is to assume an implied license to link to any target site’s home
page. The target site should have the prerogative to demand a more explicit
license only under unusual circumstances. Also, in rare cases the target site
should have the right to refuse the source Web site’s link because it
does not want any association wtih that site for reasons that could tarnish its
reputation. Further, we recognize that in some cases there will be private,
secure Web sites that cannot be linked to because they contain sensitive
our estimation, however, it would be too burdensome and counterproductive to
insist upon an explicit license or explicit permission for every HREF link.
The necessity of seeking such a license for every link would diminish the
linking that occurs on the Web and thereby impair the common good of the free
flow of information. On the other hand, all IMG links and deep linking should
only be done with permission of the target site. IMG links are usually
seamless, that is, they can be effected without any awareness that an image is
coming from another site; it seems only fair that the target site grant its
permission and stipulate any acknowledgements it wants for the display of its
image at another Web site. Also, as we have seen, deep linking is problematic
for many Web site authors since it bypasses promotional announcements on the
home page and hence should only be done with consent of the target Web site.
Finally, copyrighted material should not be utilized to identify the hypertext
link without permission and proper attribution. These prima facie rules
represent a prudent way of harmonizing one’s property right in a Web site
with the Internet’s common good.
us now summarize and conclude the basic arguments of this paper.
is little legal precedent for certain controversial linking activities such as
“deep linking,” or IMG linking without permission, which many
target sites consider as unfair. As a result, there is a need for some prima
facie moral rules to fill this vacuum.
site authors have at least a moral right to restrict the ways in which their
work is linked to. This right is based on the fact that Web sites are a form
of intellectual property.
notion that Web sites are property is supported by the labor desert theory of
Locke and by the utilitarian reasoning of Bentham. If Web sites are considered
to be private property, it implies that the authors have the right of
self-determination, that is, the right to exclude others from use and to
control how their Web sites are linked to.
right, however, must be balanced by a recognition that linking advances the
common good of the Internet which is open communications and the unencumbered
flow of information. Hence restrictions on linking should not be arbitrary or
burdensome, but reasonable and prudent .
propose a compromise position that harmonizes this common good with the
property rights of Web site owners. As a rule, HREF links to the home page
should not require permission (unless there are some unusual circumstances
cited by the target site); IMG links and deep linking should require
permission. Copyrighted materials and trademarks should not be used to
identity an HREF link without permission and proper attribution.
these simple, prima facie moral rules are embraced, linking can be done with
integrity by all concerned, and social utility will be maximized.
School of Management
Hill, MA 02467
T.: 1996, “The Ancient Doctrine of Trespass to Web Sites,”
of Online Law
A.M.: 1961. "Ownership." In
Essays in Jurisprudence
A.G. Guest (ed.). (Oxford Univesity Press, New York), pp. 107-147.
P: 1997, “Facts and Law of Web Linking,”
Annual Computer Law Institute,
Bar of Georgia.
C.: 1997, “Editors Feud over Whether Linking is Stealing,”
B.: 1999, “Ticketmaster and Microsoft Settle Suit on Internet
New York Times
M.: 1997, “Suits Attack Web Fundamentals,”
May 5, p. 125.
© 1999 Richard A. Spinello. Published with permission of the copyright holder.