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. 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. 
Nevertheless, there is an on-going debate as to whether linking,
particularly "deep linkin," may give rise to copyright
Surface linking, or the process
of connecting one web site to the homepages of another site,
poses little legal concern. 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. 
Deep linking, or the process
of connecting one web site "deep" within another's
site, may pose more copyright concerns.
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.
The suit, however, was settled before a legal decision could
be reached. Indeed, a U.S. court
has yet to address this issue fully.
Vicarious Or Contributory
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. 
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
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. 
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.
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
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.