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Intellectual Property Litigation

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Deep Linking: Everyone Does It, but Is It Legal?

By now, users of the World Wide Web are very familiar with the common practice of “deep linking,” which involves providing a link on one website to a specific page or content on another website by bypassing the other website’s home page or main page. Despite the ubiquity of this practice, however, there is still some controversy over its universal legality, as illustrated by two recently filed cases: GateHouse Media v. New York Times Company, and Jones Day v. BlockShopper LLC.

Pending until just recently in the federal district court in Massachusetts was the widely followed case of GateHouse Media v. New York Times Company. GateHouse, which operates hundreds of newspapers and associated websites, sued the New York Times last December for copyright and trademark infringement, among other claims, based on deep linking to news articles and headlines on GateHouse websites by the New York Times-owned Boston.com’s “Your Town” website, which collects content related to local geographic areas in New England. Although the parties in GateHouse recently settled their case, issues regarding the legality of deep linking continue to swirl. Another case that is currently pending in Illinois federal district court is Jones Day v. BlockShopper LLC. In that case, Jones Day, an international law firm, sued BlockShopper, an online real estate news service, for deep linking to the biographies of several Jones Day attorneys in conjunction with a report on real estate purchases with which the attorneys were associated. Jones Day claims, among other things, that BlockShopper infringed and diluted the firm’s service mark, violated trademark and unfair competition laws, and created the false impression of the firm’s affiliation with the BlockShopper website by linking to the biographies and pictures of Jones Day attorneys. BlockShopper moved to dismiss Jones Day’s complaint, and the court denied the motion.

Certainly, to users of the Internet, deep linking provides a valuable benefit and greatly increases ease of use. However, as these new cases point out, some view deep linking as a detriment, arguing that a deep link might bypass advertising or marketing on the linked site or confuse the user as to the origin of the content being linked.

Whether good or bad, a majority of courts have agreed that merely linking to another website (whether in the form of a simple link to another website’s homepage or a deep link to a specific page on another website) does not constitute copyright infringement. For instance, in the 2000 case of Ticketmaster v. Tickets.com, a California federal district court stated that “hyperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved.” The court in Ticketmaster also held that linking was legal so long as it was clear to whom the linked pages belonged. In the court’s opinion, a URL link is simply an address, not unlike a building address, that allows a user to reach a destination; nothing about it is original such that it would be copyrightable. The 2004 case of Online Policy Group v. Diebold, Inc., another California federal district case, agreed: “Hyperlinking per se does not constitute direct copyright infringement because there is no copying.” Courts have also agreed that linking is unlikely to create confusion in the marketplace or dilution of a mark to support federal trademark claims. The use of another’s name in a link, as opposed to a logo, simply helps a user find information at the linked location; it does not imply affiliation, endorsement, or sponsorship by the linked site of the linking site. See, e.g., Ticketmaster Corp. v. Tickets.com, Inc.

Deep linking remains ubiquitous and, under current case law, is still allowable in most circumstances. But GateHouse and Jones Day raise significant questions about the future of deep linking in all circumstances. Practitioners should therefore stay apprised of developing case law and advise clients making use of deep linking to review their web linking practices and give careful consideration to just how close to the edge of the law their website might be.

Submitted by:
Christopher A. Wiech
Troutman Sanders LLP

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