No court has ever held that a hyperlink is illegal, or can be enjoined by the site being linked. Hyperlinks are, after all, part of the nature of the web. If they’re illegal, the web is illegal. However, this hasn’t stopped fools and bullies from making the claim. And it hasn’t stopped people from being bullied.
The latest “controversy” in this area comes from (where else?) Hollywood studios. The studios apparently don’t like fan sites linking directly to trailers and getting past sites’ stupid splash screens (at least not without paying).
Universal Studios apparently succeeded into bullying a 20-year-old Ottawa kid Jean-Pierre Bazinet from removing links to trailers from his Movie-List site, which specializes in links to trailers. (Other studios are now expected to follow its lead, effectively killing the sites.) Big Entertainment Inc.’s Hollywood.com does link to trailers. (It may pay for the privilege-BIGE is publicly traded. If it doesn’t, we’d better ask why the links remain.)
In engaging in its bullying tactics, Universal relies on a “precedent” that was actually the settlement of litigation between Ticketmaster and Microsoft last year. In that case, Microsoft had been negotiating for access to Ticketmaster’s database, and when the negotiations broke down, it hacked up access (to Ticketmaster ticket windows) anyway. There was no court ruling in the matter.
This hasn’t stopped clueless lawyers from claiming that “deep links” (links deep within a site, past a home page and its ads) may be illegal. I listened to lawyers on the American Lawyer’s old “Counsel Connect” site make this claim repeatedly a few years ago, but they couldn’t cite a single case where an American court has enjoined a basic link.
The only “case” to come up, and again it was a settlement, involved a site called TotalNews, which was stopped by Microsoft’s MSNBC and others from framing links to their news stories and, in the process, hiding the ads surrounding the stories. (I agreed with the complainants on this one.) TotalNews now opens new (and smaller) browser windows on most links and still frames MSNBC’s home page, just not in a way that hides MSNBC’s ads. Again, no court made a ruling on behalf of MSNBC.
This hasn’t stopped papers like The New York Times, which deliberately avoids links for fear of “losing” the customer (their editorial links come only after warning readers they’re leaving the site) from repeating the claims. The Times, by the way, requires registration, and won’t make the above link until you give them personal data. Sites that require payment also can’t be linked to, which is why you won’t find links to TheStreet.com stories here.
The point is we’re just talking about claims. If “deep-linking” in and of itself is illegal, then linking is illegal, the web is illegal, and we should all (including the movie studios) put those billions of dollars back where we found them. (Let’s throw some handcuffs around Tim Berners-Lee while we’re at it.)
The fact is links aren’t illegal. Even links to databases are legal. What we have are bullies and fools selling things they don’t own, then threatening to go to court so they can uphold their “claims.” If the studios don’t want people linking to their trailers, don’t make them part of the web. Charge for them.