A City Tries to Stop a Woman from Linking to Its Website: Why Most Challenges to Links Will Not Succeed, and What the Rare Exceptions May Be
By ANITA RAMASASTRY
|Tuesday, Sept. 02, 2008|
Sheboygan, Michigan resident Jennifer Reisinger alleges that after she created a link from her own website to the website of the city's police department, the City Attorney issued a "cease and desist" order commanding her to remove the link. Reisinger claims that the motive was retaliation: She had supported recalling Sheboygan Mayor Juan Perez, and alleges that Perez was behind the "cease and desist" order.
Reisinger eventually filed a federal lawsuit challenging the "cease and desist" order. Although the city has withdrawn its demand that she de-post her link, Reisinger seeks $250,000 in compensatory damages, unspecified punitive damages, and unspecified declaratory relief, alleging that city personnel violated her First Amendment rights.
In this column, I will discuss why I believe Reisinger will, and should, win her case. Generally, linking is fair game from a legal perspective - including linking to public and official websites. After all, linking is not much different from including a URL in an email, handout, or poster - and all of these are plainly forms of First-Amendment-protected expression.
Because Linking Is First-Amendment-Protected, the City Would Need a Compelling Reason to Order Someone to Depost a Link to a Public Site
At least one federal court, in a case involving Internet censorship, ACLU v. Miller, has noted that linking may be First- Amendment-protected. I believe that this is clearly the correct analysis. Linking is, in part, the Internet's equivalent of quotation, and it has long been established that quotation - including quotation that serves the purpose of aiding sharp criticism of the work that is quoted - is First-Amendment-protected, as well as being typically covered by the "fair use" exception to the copyright law. Indeed, linking serves free speech by allowing readers to access more voluminous material than could easily be directly quoted, and then to read the writer's commentary on that material.
If anything, linking to government websites is at the very core of First Amendment protection. By definition, such sites are public, not private, and the right to protest governmental action and petition for change is a crucial part of our system. Accordingly, using links to send others to a police or agency website is not only legal, but generally a positive thing. The police may be annoyed by the volume of calls and emails they receive, but that volume only represents the voices of the citizens they serve.
In this case, it appears that Reisinger's link was fully First-Amendment protected. Thus, the city would have needed a compelling reason to order her to de-post, and it appears that it had none.
The Exceptions: How Linking Can Be Illegal
Of course, there are exceptions here, as with all free speech - but none applies to Reisinger's link. For instance, using a link to communicate a threat could be illegal - for example, if a site were to say "Kill this person" and then link to a website with his or her photo on it.
Linking itself does not inherently violate copyright, for it does not involve copying. Rather, clicking on a hyperlink directs an Internet user to a new Web page. This point was made by the district judge in a 2002 suit by Ticketmaster against Tickets.com. There, the judge also compared linking to a website to using a library card catalog to find information.
However, if a website owner knowingly provides links to material that violates copyright, this act may constitute contributory copyright infringement. For instance, in Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court dealt with possible copyright infringement where a defendant initially posted unauthorized copies of copyrighted material on its own site, and then replaced the copies with links to other sites that also had posted unauthorized copies.
In addition, pointing to infringing material for the purpose of disseminating such material may violate the Digital Millennium Copyright Act (DMCA). In Universal v. Reimerdes, a court barred 2600 Magazine from posting hyperlinks to DeCSS code - which it found to be an illegal copyright-circumvention device -- because the court found the magazine had linked to this software code for the purpose of further distributing it to other Internet users. The court found that it had the power to issue such a prohibition because of the nature of the link as an infringing act.
Web links may be problematic if they are misleading. Links might also be part of a valid claim for misrepresentation, defamation or false advertising, if the link's text or surrounding materials make false statements about the site that is linked to (for instance, claiming that the linking site is affiliated with or sponsored by the company to whose site the link leads).
Some commercial websites' Terms and Conditions require permission before other sites can link to them. Courts have not yet made clear whether this permission requirement is generally valid - and it may well violate the First Amendment. However, the reason for the permission requirement is understandable: Sites want to be able to fend off competitors who might, for instance, make some kind of parasitical use of the site's resources in a way that violates unfair competition laws. Attempting to require permission for links allows the site to preempt the argument that it somehow consented in advance to what would otherwise be unfair competition.
Deep Linking: The Additional Issues It Raises
"Deep linking" (which appear not to have been at issue in the Reisinger case) refers to the use of hyperlinks to a page other than a website's home page, and raises issues of its own.
Website owners often complain that deep links may divert traffic away from their home pages and disrupt the intended flow of their sites and thus confuse customers who find themselves in the middle of a new site. One of the biggest complaints is loss of revenue. Some websites rely on paid advertisements. If a visitor bypasses a home that which contains pay-per-click ads, the website owner may lose needed advertising dollars. The suit by Ticketmaster against Tickets.com involved a deep link that bypassed Ticketmaster's webpage. As noted above, the judge there saw no copyright violation because the link did not itself involve copying. But he did note that deep links may cause other legal liability for businesses, when they contribute to consumer confusion about the identities of different commercial websites. For instance, if a site links to another site's internal purchasing page, customers routed to that page by the link may falsely believe they are buying from the first site, not the second.
Previously, another case illustrated why deep linking can raise unique legal issues - particularly involving confusion as to the true source of copyrighted material or trademarked products. There, federal judge Sam Lindsay of the Northern District of Texas granted a preliminary injunction against the operator or a motorcycle racing website, Supercrosslive.com. Defendant Robert Davis had been posting deep links to live audiocasts of motorcycle racing events on another racing site, belonging to SFX Motor Sports, which holds the copyright to the audiocasts.
SFX commenced a lawsuit against Davis in February 2006. It claimed that it was being harmed financially by Davis's deep links. Racing fans who clicked on Davis's links would not visit SFX's homepage and see the logos of SFX's paid sponsors, which provided money for the SFX audiocasts and site.
Judge Lindsay ruled in SFX's favor. He ruled that Davis's deep links did not fall under the "fair use" exception to copyright law, and ordered Davis to cease linking directly to SFX's audiocasts. He also noted that without the injunction, SFX would lose its ability "to sell sponsorships or advertisement on the basis that it is the exclusive source of the Webcasts."
As the SFX case illustrates, there are genuine legal claims that arise from linking, especially deep linking. But as the Reisinger case illustrates, the classic link - connecting to another's sites homepage and telling the truth about it - not only is legally unproblematic, but also advances free speech.