A link is a URL, a fact not unlike a street address, and is therefore not
copyrightable. However, a list may be copyrightable under a compilation
copyright if it contains some originality. An example of a list of facts that
lacks the requisite originality is a telephone book. A telephone book is a list
of facts (people's names and phone numbers) generally listed in alphabetical
order. It was held in the case of Feist v. Rural Telephone that a
telephone book as such could not be copyrighted under a compilation copyright
because the fact that the listings were alphabetized was not original enough.
Presumably, a telephone book that listed people in random order would be less
deserving of copyright protection.
It seems that such random listings are just what appear on a lot of Web pages.
However, if there is some original thought put into creating a link list, then
it may be protectable. For instance, assume I created a listing of references
relating to intellectual property. Assume many gruelling hours were spent
separating the relevant from the irrelevant, and consequently the listing would
be protectable as a compilation.
This means that if you see a cool Link List, and you copy wholesale to your Web
site, it is probably a copyright violation. However, if you want to take
several links from a list, this is probably not a copyright violation.
A federal district court in California dismissed Tickmaster Corp.'s copyright
infringement claim against Tickets.com for including a hyperlink to
Ticketmaster's website. Ticketmaster's site facilitate's
online purchase of event tickts, and includes basic information. It also
states in its terms and conditions that copying for commerical use is not
Can you link to anyone you want? Do you have to get permission to link to
someone else's page? Can someone prevent you from linking to their page? Can
you prevent someone from linking to your page? Is there such a thing as a
doctrine of Implied Public Access on the Web?
As it stands now, there appears to be a doctrine of implied public access on
the Web. The Web was created on the basis of being able to attach hypertext
links to any other location on the Web. Consequently, by putting yourself on
the Web, you have given implied permission to others to link to your Web page,
and everyone else on the Web is deemed to have given you implied permission to
link to their Web pages.
But what about the bad association that inevitably rubs off on your Website
when some other particularly vile Website decides to link to it? Good will is a
substantial asset of a Website, and it is possible that such an asset could be
diminished by such associations. This issue was raised in a WebWeek editorial
(WebWeek, July, 1995) in the context of Babes on the Web, a Website that rates "the women of the Web" and links
to various women's Webpages that contain photos. The editorial posits that
monitoring places from which your site is linked is your responsibility.
Suggestions for monitoring include combing the Web for references to your site,
examining where your incoming traffic is linking in from, and asking other site
to get you permission before linking to your site.
Such monitoring activities will probably be woefully inadequate to protect and
insulate your site from other pages with which you do not wish to associate.
Since there is insufficient legal precedent in this area, it is prudent to fall
back on the law of the net - netiquette.
- Netiquette dictates that:
Links to other Websites be removed if the linkee objects.
Composite Web pages are pages that take different elements from diverse pages
or servers to create a new Web page. However, instead of copying the elements
to the composite page, the elements are linked in. Thus, the composite page
would consist of a series of links to other sites and servers. When you browse
the composite page, the page directs your browser to get the graphics and other
elements from the original sources.
This type of linking raises several hairy
issues. One such issue is related to implied public access as discussed above.
If you put up a Web page, and by so doing have impliedly granted permission to
others to link to your page, have you also granted them permission to link to
individual elements of your page? The problem here is that the Web is
multimedia and context is everything. As we have seen with fair use the
copyright status of an element maybe context dependent.
For example, this site
contains a sound sample of 2 Live Crew's version of Pretty Woman. The
sample resides on this site without permission of the copyright holder in the
context of commentary and criticism as outlined in the fair use test. If
someone were to create a Web titled Free Audio Samples and
link to this, and other similarly situated samples, it is clear that such a use
would not be protected as fair use. By stripping an element of its context, you
also strip many of the copyright privileges that may have been attached.