Copyright Fundamentals - Website Linking Issues

Link Lists

A link is a URL, a fact not unlike a street address, and is therefore not copyrightable. However, a list may be copyrightable under a compilation copyright if it contains some originality. An example of a list of facts that lacks the requisite originality is a telephone book. A telephone book is a list of facts (people's names and phone numbers) generally listed in alphabetical order. It was held in the case of Feist v. Rural Telephone that a telephone book as such could not be copyrighted under a compilation copyright because the fact that the listings were alphabetized was not original enough. Presumably, a telephone book that listed people in random order would be less deserving of copyright protection.

It seems that such random listings are just what appear on a lot of Web pages. However, if there is some original thought put into creating a link list, then it may be protectable. For instance, assume I created a listing of references relating to intellectual property. Assume many grueling hours were spent separating the relevant from the irrelevant, and consequently the listing would be protectable as a compilation.

This means that if you see a cool Link List, and you copy wholesale to your Web site, it is probably a copyright violation. However, if you want to take several links from a list, this is probably not a copyright violation.

A federal district court in California dismissed Tickmaster Corp.'s copyright infringement claim against Tickets.com for including a hyperlink to Ticketmaster's website. Ticketmaster's site facilitate's online purchase of event tickts, and includes basic information. It also states in its terms and conditions that copying for commercial use is not allowed.

Implied Public Access

Can you link to anyone you want? Do you have to get permission to link to someone else's page? Can someone prevent you from linking to their page? Can you prevent someone from linking to your page? Is there such a thing as a doctrine of Implied Public Access on the Web?

As it stands now, there appears to be a doctrine of implied public access on the Web. The Web was created on the basis of being able to attach hypertext links to any other location on the Web. Consequently, by putting yourself on the Web, you have given implied permission to others to link to your Web page, and everyone else on the Web is deemed to have given you implied permission to link to their Web pages.

> But what about the bad association that inevitably rubs off on your Website when some other particularly vile Website decides to link to it? Good will is a substantial asset of a Website, and it is possible that such an asset could be diminished by such associations. This issue was raised in a WebWeek editorial (WebWeek, July, 1995) in the context of Babes on the Web, a Website that rates "the women of the Web" and links to various women's Webpages that contain photos. The editorial posits that monitoring places from which your site is linked is your responsibility. Suggestions for monitoring include combing the Web for references to your site, examining where your incoming traffic is linking in from, and asking other site to get you permission before linking to your site.

Such monitoring activities will probably be woefully inadequate to protect and insulate your site from other pages with which you do not wish to associate. Since there is insufficient legal precedent in this area, it is prudent to fall back on the law of the net - netiquette.

Composite Webpages

Composite Web pages are pages that take different elements from diverse pages or servers to create a new Web page. However, instead of copying the elements to the composite page, the elements are linked in. Thus, the composite page would consist of a series of links to other sites and servers. When you browse the composite page, the page directs your browser to get the graphics and other elements from the original sources.

This type of linking raises several hairy issues. One such issue is related to implied public access as discussed above. If you put up a Web page, and by so doing have impliedly granted permission to others to link to your page, have you also granted them permission to link to individual elements of your page? The problem here is that the Web is multimedia and context is everything. As we have seen with fair use the copyright status of an element maybe context dependent.

For example, this site contains a sound sample of 2 Live Crew's version of Pretty Woman. The sample resides on this site without permission of the copyright holder in the context of commentary and criticism as outlined in the fair use test. If someone were to create a Web titled Free Audio Samples and link to this, and other similarly situated samples, it is clear that such a use would not be protected as fair use. By stripping an element of its context, you also strip many of the copyright privileges that may have been attached.