Chilling Effects Clearinghouse > Linking > Frequently Asked Questions
Frequently Asked Questions (and Answers) about Linking
Q: What is a hyperlink?
Q: If a hyperlink is just a location pointer, how can it be illegal?
Q: Is "deep linking" illegal?
Q: Can linking be trademark infringement?
Q: Is linking protected by the First Amendment?
Q: What is an "inline" image?
Q: What is the Robots Exclusion standard?
Q: Can search engines be liable for copyright infringement by providing hyperlinks to search results?
Q: What is "framing"?
Q: What are the "trespass to chattels" claims some companies or website owners have brought?
Q: Are website terms of use binding contracts?
Q: Do I need permission to link to someone else's site?
Q: Can a hyperlinker be protected by the DMCA safe-harbor?
Question: What is a hyperlink?
Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link
>>top
Question: If a hyperlink is just a location pointer, how can it be illegal?
Answer: It probably isn't, however, a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material:
In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. (See Anticircumvention (DMCA).) The court ruled that it could regulate the link because of its "function," even if the link was also speech.
In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work's copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.)
By contrast, the court in Ticketmaster v. Tickets.com found that links were not infringements of copyright.
Like anything else on a website, a hyperlink could also be problematic if it misrepresents something about the website. For example, if the link and surrounding text falsely stated that a website is affiliated with another site or sponsored by the linked company, it might be false advertising or defamation.
Finally, post-Grokster, a hyperlink might be argued to induce copyright infringement, if the link were made knowing that the linked-to material was infringing and with the intent of inducing people to follow the link and infringe copyright.
In most cases, however, simple linking is unlikely to violate the law.
>>top
Question: Is "deep linking" illegal?
Answer: "Deep linking" refers to the creation of hyperlinks to a page other than a website's homepage. For example, instead of pointing a link at
http://www.chillingeffects.org, this site's "homepage," another site might link directly to the linking FAQ at
http://www.chillingeffects.org/linking/faq .
Some website owners complain that deep links "steal" traffic to their homepages or disrupt the intended flow of their websites. In particular, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled its claim against Microsoft and lost a suit against Tickets.com over deep linking.
From Ticketmaster v. Tickets.com opinion:
Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently.
So far, courts have found that deep links to web pages were neither a copyright infringement nor a trespass.
>>top
Question: Can linking be trademark infringement?
Answer: Trademark infringement is misuse of another's mark to cause consumer confusion about the source or sponsorship of goods or services. By contrast, many non-confusing uses of trademarks are fair and/or non-infringing. (See Trademark Topic.)
If website uses hyperlinks, like any other content, to mislead viewers into thinking the site is endorsed by someone whose trademark it uses, (e.g., "This page sponsored by MEGACORP, click here for more details"), the website might be found to infringe the trademark. A website merely linking to someone's web page, even if that page and its URL include a trademark (e.g., "We disagree with MEGACORP, click here to visit their homepage"), is unlikely to be trademark infringement.
>>top
Question: Is linking protected by the First Amendment?
Answer: The First Amendment to the U.S. Constitution says that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble..." The government (and states, under the Fourteenth Amendment) must meet a high level of scrutiny before restricting speech.
A hyperlinks refers to and describes the location of another Internet resource. The text of the hyperlink and the material linked to may be highly expressive. In addition, the act of linking to other websites may be likened to protected "assembly," or association with those sites.
>>top
Question: What is an "inline" image?
Answer: An "inline" image refers to a graphic displayed in the context of a page, such as the picture to the right here. HTML (Hypertext Markup Language) permits web authors to "inline" both images from their own websites and images hosted on other servers. When people complain about inline images, they are most often complaining about web pages that include graphics from external sources. The legal status of inlining images without permission has not been settled.
>>top
Question: What is the Robots Exclusion standard?
Answer: Robots (or 'bots or webcrawlers) are automated web browsers that "crawl" the web to retrieve web pages, for example on behalf of search engines or price comparison sites. The Robots Exclusion standard is an informal convention many of these robots obey, by which webmasters can place a "robots.txt" file on the webserver to tell web robots to avoid some pages or entire sites.
>>top
Question: Can search engines be liable for copyright infringement by providing hyperlinks to search results?
Answer: Some Internet search engines have been getting "takedown" requests under the Digital Millennium Copyright Act, Section 512 (see DMCA Safe Harbor for more information). The DMCA provides a safe harbor to information location tools that comply with takedown notices, but it is not settled whether they would be liable for copyright infringement if they did not use the safe harbor. Arguably, computer-generated pages of links do not materially facilitate infringing activity or put their hosts on notice of copyright infringements.
>>top
Question: What is "framing"?
Answer: Modern web browsers allow web authors to divide pages into panes or "frames". Many sites use frames for navigation, putting a navigation bar in one frame and the main content in another. Since it is possible for a site to call a frame's contents from a different location, a programmer might "frame" another's web content beneath his own navigation or banners. See the TotalNEWS site for an example of framing.
The legal aspect of this web design are complex. The creator of a frame does not literally "copy" the contents of the framed page, but the juxtaposition of pages may be claimed to create the mistaken impression of sponsorship or association.
>>top
Question: What are the "trespass to chattels" claims some companies or website owners have brought?
Answer: Some Internet companies have claimed that unauthorized use of their servers, such as unsolicited email or robot-generated hits to websites, are a "trespass" to those servers by depriving the owners of the full use of their machines. eBay won an injunction stopping Bidder's Edge from automatically spidering the eBay site to generate auction comparison listings, because the robotic crawler used eBay system resources. The caselaw is far from settled in this area, and some commentators argue that technical means to block the use are more appropriate than legal action.
See Tom W. Bell's online casebook for more information about trespass claims.
>>top
Question: Are website terms of use binding contracts?
Answer: The law is still not settled on so-called "click-wrap" contracts, but a court will look at how prominently the terms of use are displayed and whether you had to agree to them before you could proceed with using the website or service.
If you never saw the terms of use, there can be no "meeting of the minds" to form a contract. In Specht v. Netscape, a court found that there was no contract for a software download, where there was no proof the downloaders were on notice of or agreed to the terms.
>>top
Question: Do I need permission to link to someone else's site?
Answer: In general, if someone is making a website publicly available, others may freely link to it. That open linking is what makes the web a "web."
>>top
Question: Can a hyperlinker be protected by the DMCA safe-harbor?
Answer: Someone who posts hyperlinks to online material may benefit from the DMCA safe harbor in section 512(d), "information location tools." If you linked to materials without knowing they were infringing, but then receive a notice of claimed infringement, you can claim the statutory immunity if you remove the link expeditiously (see also What does a service provider have to do in order t...?).
>>top
Maintained by Electronic Frontier Foundation
