Easy movement from one web site to another is available through “links” between web sites. Hypertext links are the highlighted text, pictures, or logos on a website that, when selected by a user, connect to another web page. Deep linking occurs when a web site provides a hyperlink to another web site, but instead of going to the other web site’s home page, it goes to another page deep within the web page hierarchy. The effect of this practice is that the linking site’s advertising revenues may be enhanced by providing content from another web site, often avoiding any of the advertising on the other web site.
Litigation in this area has focused on three main areas: copyright, trespass and trademark infringement. In Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. Lexis 12987 (D.C. Cal. August 10, 2000), Tickets.com linked to internal Ticketmaster pages and compiled that information on its own site to provide to its own customers. The court ruled that there was no infringement, however, because the activity fell within the fair use doctrine and the “hot news” exception. Likewise, finding that there was insufficient interference with the Ticketmaster web site, the court ruled that the physical harm requirement for trespass was not satisfied.
In contrast to the Tickets.com case, the court in eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) found that trespass to a company’s web server was a valid theory and granted a motion to enjoin Bidder’s Edge from accessing eBay’s servers. eBay is an auction site that lists millions of auctions each day.
Bidder‘s Edge developed software that searched eBay’s server and retrieved information about the auctions. The court found the software effectively diminished the performance of eBay’s servers and qualified as a physical harm under trespass law.
These cases show that Internet linking is an evolving area of Internet law that may implicate a variety of intellectual property concerns. Some businesses have actually entered into agreements to allow for, and control, such links between web sites. The American Bar Association has published a guide entitled Web-Linking Agreements: Contracting Strategies and Model Provisions, which is available for purchase at http://abastore.abanet.org/abastore/index.cfm?section=main& fm=Product.AddToCart&pid=5070311. The advice of counsel may also help a business evaluate the potential risks involved in linking and possible use of a web-link agreement.