One of the wonderful things about the World Wide Web is linking. You can be just one click from far-away places. You likewise could be just a click away from infringing someone else's rights or landing yourself in trouble.
Nothing beats traffic. The prospect of someone linking to your home page is wonderful. More traffic. Who would complain?
Well, look at it another way. Suppose that you set up a Web page about horse race gambling, with very little original content - mostly links and affiliate banners. The links are to betting odds, articles, and other things about the Sport of Kings, and the affiliates are off-shore betting sites (the many legal issues created by off-shore gambling affiliates are beyond the scope of this article, but beware!). You could go one step further and frame the odds; that way your surfers could conveniently view odds on races and an array of banners pointing them to places where they can bet. But isn't there something wrong with having a site that profits almost entirely from the efforts of others?
This article is about the linking and framing aspect of Rule One for Website content: "You can't make money using other people's stuff, unless you pay for it." You don't need to be a lawyer to grasp that concept, even if lawyers and courts are having difficulty sorting it out.
Legally safe linking has several components; three important ones are: (1) Link only to home pages; (2) make it clear that the link is to a site with which you are not involved and over which you have no control; (3) and avoid linking to sites that appear to be doing something illegal or in violation of the rights of a third party.
Linking to other than home pages - so-called "deep linking" - raises a variety of risks. When someone creates a Web page, it is usually designed to be entered through the "front door" only, and for a variety of reasons. Deep linking frustrates that design and, accordingly, raises the specter of legal problems. For example, deep linking evades the terms and conditions, one of which often prohibits "deep linking." (Does yours include that?) Deep linking also often circumvents the very reason for the site's existence - advertising, affiliate banners, promotion, or whatever. In the adult area, deep linking may also sidestep measures taken by the Webmaster to prevent minors from entering the site and, of much greater concern, measures to comply with 18 U.S.C. � 2257, the statute that requires explicit images be associated with a disclosure about the custodian of records concerning the age of the models/performers.
The worst-case scenario, a criminal prosecution for violating � 2257, could be deflected on the grounds that the linking site did not itself do any of the acts that trigger the duty to affix the disclosure, i.e., it did not publish an image, but rather only pointed to where it was located. Whether a prosecution could be deflected would depend on the particulars, but the cost of deflection could be very substantial. Lawyers!
Deep-linked sites have enjoyed mixed success in obtaining redress against the linker. However, the law in this area is beginning to fall into place, upping the odds that a victim of deep linking can get his comeuppance against the linker.
Copyright claims have thus far enjoyed little success because a copyright violation with respect to a photograph requires copying or display. The significance of the viability of copyright claims is that the owner of a properly registered copyright can garner statutory damages (which can be huge) and attorneys' fees, not just actual damages or lost profits. It is therefore also significant that linking to a copy of a picture that itself is a copyright violation can constitute contributory infringement; so, the linker can be on the hook because of the other guy's infringing activity. And at least one court has held that the use of thumbnail-links was infringement: Kelly v. Arriba Soft Corporation, 280 F.3d 934 (9th Cir. 2002). As links to video clips emerge, the importance of the right to display a copyrighted work could become a more serious factor.
Creative attorneys have contrived other legal grounds to attack deep linkers, including convoluted theories of breach of contract (i.e., breach of the terms and conditions of the linked-to site), trespass (by chewing up bandwidth), misappropriation (i.e., theft of content), unfair competition (common-law or violating a state statute) and violating � 43(a) of the Lanham Act by something called "reverse palming off." The Lanham Act is significant because there is the potential of attorneys' fees recovery in an "exceptional case." The law evolves slowly enough that these theories have not quite caught up to the rapidly developing Internet technology, but they are getting there.
The second issue about linking is being sure that, when the surfer links out of your site to another, it is clear to him that he is linking out of your site. Links, particularly to affiliates, often are much too seamless. Worse, the practice of "framing" without the consent of the framed site is a double whammy. Not only is it a likely intellectual property violation, the framed image will almost invariably be considered a part of your site.
Now, suppose that the surfer reads about your site in a magazine and types in your Web address, and, whether by type-in traffic or otherwise, bookmarks your site. Later, something happens that you think at the time is good - he hits one of your affiliate banners and signs up. But the affiliate, then unbeknownst to you, is evil, and engages in fraudulent, recurring-billing practices. The cantankerous surfer then marches down to the Federal Trade Commission, complaining that he went to your URL, signed up for a month of a supposedly free trial membership, and found himself being charged $59.95 per month in perpetuity. The FTC looks up the URL, and there you are. The same could happen with a greedy California attorney, looking to sink his teeth into you under the Consumer Legal Remedies Act. Maybe your expensive attorney can get you off the hook, maybe not.
When you link to a site over which you have no control, it is better practice to plainly notify surfers that this is about to be someone else, and not you. The fuzzier the transition between your site and an unrelated one, the greater the risk of being on the wrong end of an enforcement action against someone you cannot control.
Another reason for drawing a bright line between your site and the one to which you are linking is to avoid complaints that you are unfairly capitalizing on the linked content - not giving credit where credit is due. For example, suppose you have www.photosofbridges.com (unregistered as of this writing), a site that features photographs of bridges. Seamless links to photographs of bridges on other sites could put you in peril of being accused of implying that the pictures are yours, where they in fact belong to the linked sites. This could generate a complaint of unfair competition under many state statutes, as well as the federal Lanham Act.
The final of this month's caveats concerns linking to sites while turning a blind eye to obvious violations of laws and/or third-party rights. Don't say it - obviously it is not your job to scrutinize every site to which you have a link so as to be certain that it is in strict compliance with every law discussed in these pages over the years. On the other hand, if, for a hundred bucks, someone sells you a brand new $3,000 television set with the serial number filed off, not many juries would find that you did not have reason to believe that it was stolen. Similarly, there are some Websites - you have all seen them - nobody could say with a straight face that they are on the up-and-up. The strongest disclaimer - "This link is to a site that is totally independent of this site, whose ownership and management totally disapprove of the practices of the object of this link" - will not do very much for you if the object of the link is child pornography or blatant copyright infringement.
As the law catches up to the Web, legal remedies are becoming more available, and it is thereby more probable that benefiting from the work or misdeeds of others will land you in hot water.
Clyde DeWitt is a partner in the Los Angeles, California-based national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
