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Legal Issues On the Internet: Hyperlinking and Framing by Maureen O'Rourke

What's all the hype about hyperlinking? by Jeffrey R. Kuester and Peter A. Nieves Thomas, Kayden, Horstemeyer & Risley, LLP




Certain forms of "linking" may give rise to copyright liability while other forms may not. Indeed, linking may be an essential component for communication on the World Wide Web as it provides some direction to our web surfing.[1] This web site, for example, provides several surface links to "related material." Moreover, several search engines use some form of "linking" to help Web surfers find information. [2] Nevertheless, there is an on-going debate as to whether linking, particularly "deep linkin," may give rise to copyright concerns.

Surface Linking

Surface linking, or the process of connecting one web site to the homepages of another site, poses little legal concern.[3] Surface linking might be akin to telling someone that a television show is about to be broadcast or telling someone that a book is available in a public library or in a particular bookstore. The web publisher that includes surface links on his or her page is merely directing a user to access another's homepage and to enter through the "front door." The publisher has not copied, reproduced, or distributed a copyrighted work without the authorization of the copyright holder. [4]

Deep Linking

Deep linking, or the process of connecting one web site "deep" within another's site, may pose more copyright concerns.[5] This form of linking, by definition, bypasses the homepages of the copyright holder and therefore may bypass advertising or proprietary content that the copyright holder wishes the Internet surfer to see. In some respects, then, this form of linking may interfere with the copyright holder's right to control the display and distribution of his or her work. Such a claim was made by the owner of a site, Ticketmaster, when Microsoft Corporation deep linked directly to Ticketmaster's order form.[6] The suit, however, was settled before a legal decision could be reached.[7] Indeed, a U.S. court has yet to address this issue fully.

Vicarious Or Contributory Infringement

Two possibilities for copyright liability, however, remains: contributory or vicarious infringement. Contributory infringment occurs when an individual, with actual knowledge, substantially assists another in violating copyright law.Vicarious infringement occurs when an individual, with or without knowledge, recieves direct financial benefit from another's copyright infringement and when he or she suprvises or controls the activity leading to the infringement. [8] Hyperlinking to clearly infringing material may lead to liability. The person or corporation creating such "hyperlinks" may be essentially directing others to violate the law and thus, may be held liable, depending on whether he or she meets the test for infringement. To date, this issue is still being debated. [9]

Whether a U.S court would actually find liability for the creation of such links, however, would depend on a variety of factors. Maureen O'Rourke, an Associate Professor of Law at Boston University School of Law, for example, has argued that there is either an "implied license" to "link" or that linking is a form of "fair use." She also emphasizes that the Internet has received strong First Amendment protection for its unique abilities to facilitiate the exchange of information and idea, and that these First Amendment values would weight strongly in favor of free linking. [10] In other words, if hyperlinking could give rise to copyright liability, this liability could have a "chilling effect" on Internet communications. Nevertheless, in light of the ongoing debate, it remains unclear whether linking activities may be restricted by copyright law.

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More Information:


1. See Alain Strowel and Nicolas Ide, Liability with Regard to Hyperlinks. 24 Colum. VLA J.L. & Arts 403, 404 (2001).

2. See id.

3. See id. at 407 and 423.

4. For more information about these rights, please turn to the Rights of Copyright page

5. See Strowel, supra note 1, at 423.

6. See id. at 433-434.

7. See id.

8. See Bruce P. Keller, Internet and Online Law: Copyright, in Fourth Annual Internet Law Institution, Practicing Law Institute, Vol. 1, 169, 207-208 (2001).

9. See Strowel and Ide, supra note 1, at 416.

10. See Maureen A. O'Rourke, Legal Issues on the Internet: Hyperlinking and Framing. D-Lib Magazine, April 1998. Available at <<http://www.dlib.org/dlib/april98/04orourke. html>> Last accessed, November 28, 2001.

11. See id.

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