27thMarch

To Link, or Not to Link

 The laws regarding third-party linking on your website are pretty murky, so we try to clear things up a little.1

You want a content-filled website to provide visitors with information but, what’s the point in reinventing the wheel when someone has already researched and published an article conveying precisely what you set out to say? Nobody likes a copycat. And no one wants to be accused of copyright infringement, which could result in civil and criminal penalties. This Blarticle focuses on whether providing your readers with a link to third-party websites is tantamount to claiming it as your own. More precisely, would you face legal liability for doing so?

Like with most legal questions, the answer is “it depends.” For typical hyperlinking to web pages, generally you will not face legal liability for directing web traffic to an external site. But, it all depends on the type of link.

Deep Linking involves providing a link that connects to a particular page of a third-party’s site other than their homepage. Generally deep linking does not create legal exposure.

Inline Linking embeds the content of a third-party’s website directly onto your site. While this is a less certain area of law, in Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (2007), a ninth circuit appellate court held “providing these HTML instructions is not equivalent to showing a copy [in that] the instructions are lines of text, not a photographic image . . . [and] HTML instructions do not themselves cause infringing images to appear on the user’s computer screen [but] merely gives the address of the image to the user’s browser.” The Perfect 10 case essentially holds inline linking generally does not constitute copyright infringement.

Framing aggregates different third-party sources onto your page so that viewers could mistake the content to be your own. The current state of the law remains unclear, and some scholars believe this possible viewer confusion could raise trademark issues and result in legal exposure.

Remember, even if the law is on your side, particularly litigious third-parties could cost your business time and legal fees in defending a suit. One proactive solution to protect yourself is to obtain consent from the linked site. Many consider this to be proper internet etiquette. Seek legal counsel to address potential legal issues on your site.

This primer only scratches the surface of a murky area of law. Other concerns for hyperlinking include linking to infringing works; linking to circumvention technology proscribed by the DMCA; derivative works; defamation; passing off; and others. Review the following links regarding these topics and others.

• Nuts and Bolts to Hyperlinking and Liability
• Links and Law
• Companion article Links and the Law—Myths
• The Legalities of Linking
• Linking to Copyrighted Materials
• Linking to Illegal Content


1DISCLAIMER: This article is not intended to and should not be considered or used as legal advice. Rather it is a rough summary of general guidelines in hyperlinking and does not contemplate the several nuances therein. You should always consult legal counsel to determine your rights and liabilities.