[Ecommerce] Proposed TACD postion on Linking

[James Love]

This could use some work.  Jamie
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Draft .9

Proposed TACD position on Linking


The Internet's World Wide Web is designed so that persons can point to
information, using a Universal Resource Locator, commonly referred to as a
URL.    Pointing to a resource on the Internet is sometimes referred to as
"linking."  It is common for web pages to link to other resources on the
web.   There are legal disputes over linking practices.  For example:

-	Music publishers claim that it is illegal to link to web pages
that have copies of software that can circumvent DVD anti-copying
technologies.  

-	Music publishers want Internet Service Providers to be libel for
infringement if they host web pages that link to web pages that have
infringing MP3 files.  Similar claims have been made in connection with
hypertext links to photographs and other materials.

-	Ticketmaster, Universal Studies, eBay, the Times of London, the
Washington Post, the Village Voice and others have asserted that "deep"
linking is illegal under various legal theories.  (Deep linking is a name
for linking to an "interior" page on a web site, such as
http://news.cnet.com/news/0-1005-200-324822.html, which is a "deep link"
to a page on cnet's news.com web site.)

-	The Los Angles Times, Total News, Playboy, Futuredontics, Hotmail
and many others are involved in disputes over the appropriate use of
"framing" web pages -- a practice of presenting a web page within another
web page. 

	The technology of the World Wide Web is new.   Governments should
avoid restrictions on a person's freedom to point to information.   The
benefits of the free flow of information, including information about
where information is located, are great.   We are particularly concerned
with efforts by governments to prohibit such practices as "deep linking,"
a practice that is fundamental to the web.  If web page operators were to
forgo deep links, it would be far more difficult to find information on
the Internet.  

	We oppose efforts to make web publishers liable for infringing
materials that appear on linked pages.  This will chill speech on the
Internet.  It is impossible for most persons to know if a linked web page
contains infringing materials.  Moreover, it will undermine the rights of
persons who have legitimate claims to use materials on the web, including
cases where there are differences of opinion regarding infringement.  For
example, under doctrines of fair or innocent use, the use of copyrighted
materials is permitted, even without authorization, for some purposes.
However, if a web page is perceived to be using materials in ways that may
be controversial, the publisher will run the risk of others declining to
link to that page, in order to avoid liability for contributory
infringement.   The web page publisher will be thus be punished even if
engaged in legally permitted activities.  

	The Internet is a new technology, and we are only beginning to
understand how it will be used.  There are many technological solutions to
concerns expressed by content owners.  Governments should protect the
freedom of persons to link to web pages.

For more information on linking disputes, see:
http://www.jura.uni-tuebingen.de/~s-bes1/lcp.html
 
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James Love Center for Study of Responsive Law | Consumer Project on
Technology | P.O. Box 19367, Washington, DC 20036 | http://www.cptech.org
Voice 202/387-8030 | Fax 202/234-5176 | love@cptech.org