The question of whether ‘deep-linking’1 is and should be illegal has been the subject of much debate.2 One argument in favour of prohibiting deep-linking is that deep-linking sites should not be allowed to benefit from unauthorised use of the interior pages of another Web site. Another argument is that a Web site may lose advertising revenue as a result of a deep-link bypassing its home page; Web sites often generate advertising revenue according to the number of Internet users that connect to its home-page.3 A contrary argument is that there should not exist legal barriers to the free flow of information on the Internet. The recent French decision, Keljob v Cadremploi;4 serves to intensify the debate.
Breach of copyright?
Deep-linking does not amount to copying
In the only reported UK decision on deep-linking,5 Shetland News displayed, on its Web site, news headlines copied from Shetland Times’s Web site. Some of the headlines that were displayed on Shetland News’s Web site were also in fact deep-links to news articles on Shetland Times’s Web site. The Scottish Court of Session held that there was a prima facie case of copyright infringement and ordered an interim interdict which prevented Shetland News from reproducing Shetland Times’s headlines.
Unfortunately, the judgment of the Scottish Court of Session does not indicate whether the act of deep-linking on its own (ie deep-linking where the link does not contain material from a copyright-protected source) amounts to a breach of copyright. Last year, however, a US District Court decided on the issue and concluded that the act of deep-linking does not constitute copyright infringement ‘. since no copying is involved. The customer is automatically transferred to the particular genuine page of the original author’.6
An English court might similarly hold that the creation of deep-links, of its own, does not amount to copying for the purposes of the Copyright, Designs and Patents Act 1988 because the deep-linking site does not, in fact, carry out copying of the linked-to Web-page. However, an Internet user that clicks onto a deep-link does make a temporary electronic copy of the Web-page to which he or she links.7 Even though this copying by the user may amount to reproduction for the purposes of the CDPA,8 it is unlikely to amount to copyright infringement by the user because the owner of the Web site, by enabling his or her Web site to be accessible on the Internet without hindrance,9 probably grants the user an implied license to access/copy the Web-page, unless the particular circumstances suggest otherwise.10
Unfair competition/passing off?
The non-English judgments discussed below show that liability may arise for ‘unfair competition’ where there exists confusion as to the source of the linked Web-page11 and, conversely, show that liability for unfair competition may not arise where the source of the Web-page is clear. It remains to be seen whether an English court will draw the same conclusion, under the law of ‘passing off’, that liability may arise in circumstances where there is confusion of source.
Where there is no confusion of source
In Keljob v Cadremploi, Keljob created an online employment search engine12 which, when utilised by visitors to its Web site, produced a short description of job vacancies,13 some of which derived from the vacancies appearing on Cadremploi’s Web site. The search-engine also produced deep-links to some of the interior Web-pages on Cadremploi’s Web site, containing further information on a particular vacancy. On clicking a deep-link, an intermediary page would alert the user to the fact that he or she was about to be connected to a different Web site; the deep-linked Web-page from Cadremploi’s Web site also appeared as a separate ‘pop-up’ window. The appeals court of Paris14 found that, in those circumstances, the act of deep-linking did not amount to an act of unfair competition. The decision supports the contention that, under French law, the act of deep-linking does not amount to unfair competition where the source of the Web-page is clear.
Where there is confusion of source
It is possible for an Internet user to click onto a deep-link and not become aware that he or she has connected to a different Web site. Such were the facts in a French case which again involved Keljob.15 Keljob’s search engine created deep-links that connected users to the internal Web-pages of the Cadres On Line employment Web site. In this case, Keljob modified the logos and URL displayed on the deep-linked pages of Cadres On Line. The Tribunal de Commerce de Paris ordered Keljob to stop displaying the deep-linked Web-pages of Cadres On Line under a different Web address and to stop modifying the logos. It concluded that linking amounts to unfair competition where it has the effect of misleading users as to the source of the Web site.
Support for the view that deep-linking amounts to unfair competition where there is confusion as to source may be found in the judgment in Ticketmaster v Tickets.com. In that case, the US District Court judge concluded that ‘deep-linking by itself (ie without confusion of source) does not necessarily involve unfair competition’ (emphasis added). It would seem that in circumstances where there exists confusion of source the judge thought that deep-linking could constitute unfair competition.
Although there exists no English case on the issue, a claimant might consider bringing an action in passing off16 for deep-linking where there is confusion as to the source of the deep-linked page and injury17 to the goodwill of the claimant’s Web site business.
Where confusion or a perceived association arises because the link is framed
One situation in which there exists a real risk of confusion as to the source of the Web-page is where, when a user clicks on deep-links on a Web-page, the linked-to page appears ‘framed’ within the Web-page (ie the linked-to page appears within just part of the linking Web-page, surrounded by a border).18 Confusion is compounded by the fact the Internet address of the framed page is generally not displayed.
In The Washington Post v TotalNews,19 a claim was brought against TotalNews for linking to news articles displayed on the Web sites of several news publishers. Users would click onto the links and the articles would appear framed within TotalNews’s Web site. The Washington Post, together with other news publishers, brought an action for, inter alia, copyright infringement and unfair competition. Although the parties did not go to court, the settlement provided that TotalNews could not frame the news publishers’ Web sites.20
Even where framing does not result in confusion of source, it may give rise to users believing that the linking Web site and the framed Web-page are associated in some way, possibly leading to injury to the goodwill of the linked-to Web site’s business. An obvious example would be where a Web site which sells inferior goods/services frames the Web-pages of a competitor with a good reputation in the provision of high quality goods/services. The Web site offering inferior goods/services might give the impression that the two Web sites are linked in some way, causing injury to the reputation of the business of the other Web site.
In England, a business might consider bringing a passing-off action where, because its Web site is framed,21 there is confusion of source or a likelihood of association and the goodwill of the business consequently suffers injury. For example, Haymarket recently began legal proceedings against Burmah Castrol claiming passing-off because Castrol’s Web site had framed content from whatcar.com and autosport.com, Web sites owned by Haymarket.22 Although the issue remains undecided, the writer’s view is that it is probable that a business would be liable for framing where the public is misled into believing that there is an association between the two sites and the goodwill of the business of the framed Web site consequently suffers injury.
Breach of a database right?
The recent German decision in Stepstone v Ofir23 illustrates that a Web site business may be in breach of the database rights of another Web site if, in providing search-engine-based services to Internet users, it produces deep-links to that other Web site. Stepstone provides a service which allows users to search its database of job vacancies. Ofir also provides a similar service, but an action was brought by Stepsone after Ofir included deep-links to Stepstone’s Web-pages. The German court held that the information provided by Stepstone constituted a ‘database’ under the EU Database Directive and that Ofir’s creation of deep-links to Stepstone’s Web site was a distribution of Stepstone’s database of job advertisements and was, therefore, a breach of Stepstone’s database right.
However, in Keljob v Cadremploi, the appeals court of Paris, reversing the decision of the lower court, held that the deep-links created by Keljob’s search engine did not amount to database infringement. The court reached its decision by concluding that the amount of data taken from Keljob’s Web site did not amount to a qualitatively or quantitatively substantial part of the database’s content. Accordingly, there was no breach of the relevant statutory provision relating to database infringement.24
The Cadremploi and Stepstone decisions appear to be diametrically opposed to one another and it will be interesting to see whether an English court will adopt or reject the argument that deep-linking may amount to a breach of a database right. Under the CDPA, as amended by the Copyright and Rights in Databases Regulations 1997,25 a third-party infringes a database right if, without consent, the third-party extracts or re-utilises all or a substantial part of the contents of the database. Reutilisation includes making the contents of the database available to the public by any means26 and an English court might find that the search-engine’s act of searching a third-party’s database and creating deep-links constitutes a reutilisation of a substantial part of that database.
Trespass
In a recent case27 involving deep-linking, Ebay, an Internet person-to-person auction/trading Web site, brought a trespass action against Bidder’s Edge.28 Bidder’s Edge used ‘spiders’29 to regularly search Ebay’s Web site and to retrieve information. From this information, Bidder’s Edge’s search-engine compiled lists of deep-links to Ebay’s Web-pages. Ebay claimed that the use by Bidder’s Edge of spiders for recursive searching and retrieval of information harmed the performance of Ebay’s computer system to the extent that it amounted to trespass to a chattel. The court held that Bidder’s Edge’s search system could potentially slow Ebay’s service and that Ebay had established a sufficient likelihood of succeeding with its trespass claim.
In Ticketmaster v Tickets.com, the court acknowledged that there may be trespass where damage occurs to a computer system from the use of spiders, but found that, in the particular case before it, there was insufficient evidence that the searching by the defendant had caused harm to the plaintiff’s computer system. The court was influenced by the number of times Ticketmaster’s computers were accessed by Tickets.com’s spider, compared to the number of times Ticketmaster’s computers were accessed by all users. The court said that: ‘[t]he comparative use by [Tickets.com] appears very small and there is no showing that the use interferes to any extent with the regular business of [Ticketmaster]’.
The two cases above suggest that, in the United States, a Web site business may be able to prevent another Web site business from creating deep-links to its Web site if the process of creating the deep-links involved the use of a spider.30 Whether an English court would accept that these circumstances give rise to a trespass to goods action remains to be seen.
Conclusion
The issue of liability for deep-linking remains unresolved under English law. However, several recent judgments in Europe and the US provide a clue as to the approach that English courts might adopt in given circumstances. Set out below is a summary of the potential for deep-linking liability under the main heads of claim.
- Copyright – the US decision in Ticketmaster.com v Tickets.com concluded that deep-linking does not constitute a breach of copyright.
- Unfair competition / passing off – an English court may find that there is liability where:
- (i) there is confusion of source (whether or not with the use of frames); or
- (ii) there is a likelihood of association between a framing Web site and a framed Web site.
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- Database rights – there is scope under the Copyright, Designs and Patents Act 1988, for an English court to find that a search engine that creates deep-links to a database of another Web site constitutes an infringement of a database right.
- Trespass – recent US case-law suggests that, in the United States, a Web site business may be able to prevent another Web site business from creating deep-links to its Web site, if the process of creating the deep-links involved the use of a search-engine spider.
John Garcia is a solicitor at Clyde & Co. He can be contacted on 020 7623 1244 or at john.garcia@clyde.co.uk.
Endnotes
1. Viz., where one Web site creates a link on its Web site which connects to the pages of another Web site, without connecting to the home-page of that other Web site.
2. Web-pages are even devoted to the controversy surrounding linking – see ‘The Link Controversy’: www.jura.uni-tuebingen.de/~s-besl/lcp.html
3. In Shetland Times v Wills (infra) at p.672, Lord Hamilton stated that: ‘there is a clear prospect of loss of potential advertising revenue’. The court rejected the argument that the pursuers were ‘gaining an advantage by their newspaper items being made available more readily through the defenders’ Web site’.
4. A report of the case may be accessed at Keljob’s Web site: www.keljob.com/flashinfo/infloflash.jsp;jsessionid=aaatd8KoiVWVFMeTVky7oOJquWi3rQq
5. Shetland Times v Wills [1997] SLT 669, [1997] FSR 604.
6. Ticketmaster Corp., et al v Tickets.com Inc., decided March 2000, 54 U.S.P.Q.2D (BNA) 1344; Copy. L. Rep. (CCH) P28,059. Judge Hupp did not directly deal with the issue of whether deep-linking of its own amounts to copyright infringements in the later application for a preliminary injunction (Ticketmaster Corp. v Tickets.com, decided August 2000, Copy. L. Rep (CCH) P28, 146).
7. For a more detailed discussion see The Modern Law of Copyright and Designs (third edition), Laddie, Prescott and Vitoria, at paras. 34A.9 and 34A.12.
8. See ss17(2), 17(6) and 178. See also The Modern Law of Copyright and Designs, supra, at para 14.8.
9. It is possible to use scripting language to force users to access a Web site via its home-page: see Internet Law: Text and Materials, Professor Christopher Reed at para 3.3.4.4.
10. See Internet Law: Text and Materials, Professor Christopher Reed at para 3.3.4.4. Even if the Web page were to contain a notice expressly prohibiting access to the Web page, the user would not become aware of the notice until such time as he or she had linked to the Web page and created a temporary electornic copy of it. As such, by placing the Wen page on the Internet, the Web page owner probably impliedly consents to such reproduction: see The Modern Law of Copyright and Designs, supra, at para 34A.24.
11. Ie confusion as to which Web site produced the interior Web page.
12. A search-engine is a facility, offered by many Web sites, which identifies Web-pages containing information, specified by users of the facility, and generally creates links to those Web-pages.
13. The description was derived from information displayed on Cadremploi’s Web site.
14. Cour d’Appeal de Paris.
15. Keljob v Cadres On Line, 26 December 2000, a report of the case may be accessed at: www.juriscom.net/txt/jurisfr/da/tcparis20001226.htm
16. An action for ‘reverse’ passing off might be brought, ie for passing off another’s work as one’s own (recent English cases involving reverse passing off include: Matthew Gloag & Son Ltd v Welsh Distillers Ltd [1998] 2 CMLR 203 and Bristol Conservatories Ltd v Conservatories Custom Built Ltd [1989] RPC). Saberman discusses the use of a reverse passing off action for deep-linking in the context of US law in Link Law: The Emerging Law of Internet Hyperlinks, 4 Communication Law and Policy 559.
17. The deep-link means that the Internet user bypasses the homepage of the linked-to Web site, thereby potentially reducing the level of advertising revenue and value of the home-page. In Shetland Times v Wills (supra) at p.672, Lord Hamilton noted that “[i]t was fundamental to the setting up by the pursuers of their Web site that access to their material should be gained only by accessing their Web site directly”.
18. Frame technology enables Web sites to divide a Web page into distinct parts; alongside the Web site’s own material, a web-page can display, within a bordered area (ie frames), the web-page from another Web site.
19. The complaint may be accessed at: http://legal.web.aol.com/decisions/dlip/washcomp.html. The order of dismissal may be accessed at: http://legal.web.aol.com/deisions/dlip/washorde.html. See also Futuredontics v Applied Anagramics, Inc., 45 U.S.P.Q.2D (BNA) 2005.
20. “TotalNews Pokes a Stick at Big Media Again” 11 June 1997, see: http://www.wired.com/news.business/0,1367,4385,00.html.
21. The business might also consider bringing a moral rights action (right to paternity and right to integrity).
22. “Publisher sues over web-link”, Jean Eaglesham, Financial Times, January 10, 2001.
23. Preliminary injunction reported by The Financial Times on 17 January 2001. Landgericht Cologne affirmed the preliminary injunction on 28 February 2001. A report of the Landgericht Cologne judgment is available at: http://www.jura.uni-tuebingen.de/~s-bes1/text/stepstone_text.pdf.
24. Moreover, in NVM v Telegraaf [2001] Mediaforum 87, the Telegraaf Web site provided a search engine-based service which supplied deep-links to pages of housing offers. The Dutch Court of Appeal held that there is no infringement of a database right if the database is a ‘spin off’ product of the main business of the Web site owner.
25. S1 1997/3032, reg 16.
26. S1 1997/3032, reg 12.
27. Ebay Inc. v Bidder’s Edge Inc., 100 F.Supp. 2d 1058 (N.D.Cal. 2000) (5 ECLR 877, 23 August 2000).
28. A Web site that compares bids on auction Web sites.
29. Spiders recursively search referenced Web pages and retrieve information from those web-pages. Search-engines search through the retrieved information, identify and list web-pages containing specific information and create links to those web-pages.
30. The outcome of such a case, as indicated in Ticketmaster v Tickets.com, may depend on the extent to which the claimant’s computer system is affected by the use of spiders.
