Linking threats under the radar?

Imagine your surprise, then, when you receive a letter from one of the sites you directed people to, which says posting such links is illegal without first seeking written permission.

Similar scenarios are happening around the globe as a growing number of organizations and publishers crack down on deep linking, or the practice of sending people to pages other than a home page.

Publications such as The Dallas Morning News have claimed that deep linking creates a host of problems, including violating copyrights, depriving them of ad dollars, redirecting traffic, and generally confusing Web surfers.

Attempts to control traffic and site navigations through deep-linking bans are occurring outside the United States as well. A court in Copenhagen, Denmark, is set to rule Friday in a case that pits the Danish Newspaper Publishers' Association against Newsbooster, an online news aggregator fighting to link to stories in the association's publications.

Critics say such clampdowns could threaten the very nature of the Web.

"Linking obviously has become an essential component of the functioning of the Internet," said Lawrence Walters, a free-speech attorney with Weston Garrou & DeWitt. "Without linking, the Internet would cease to function."

However, linking disputes have yet to prompt the massive backlash seen in the wake of high-profile Hollywood crackdowns on file-swapping services and people breaking through copyright-protection codes. Instead, the deep-linking scandal is bubbling below the surface for many tech activists, who don't see it as an immediate threat.

For one thing, there's no seminal case that free-speech proponents can rally around. Instead, deep-linking bans are quietly creeping into Web sites' terms-of-service agreements. What's more, some companies that either threatened suits or posted policies banning deep linking have backed away from their plans. For example, National Public Radio recently rewrote its terms-of-use policy--which prohibited deep linking without permission--to allow such activity, although it says it reserves the right to "withdraw permission for any link."

Also, many organizations wielding deep-linking threats are inconsistent in their approach. Some fail to protest links to back pages from bigger companies. However, they send warning notices to smaller Web site operators in the hopes of intimidating them out of the practice without paying large legal bills.

So far, court decisions haven't provided much guidance on the issue, partly because most cases never reach that stage. Companies often hope a threatening letter will be enough to stop the practice.

In one of the highest-profile cases, Ticketmaster.com tried unsuccessfully to quash rival Tickets.com's attempts to deep link. A federal judge ruled that deep linking is acceptable as long as surfers can discern the source of the linked page. But auction site eBay has succeeded in preventing rival auction sites and aggregators from linking to pages on its site by making legal threats.

Paul Alan Levy, an attorney with consumer advocacy group Public Citizen, said he's seeing an escalation in the number of letters demanding a site to stop deep linking. Levy helped convince Belo, owner of The Dallas Morning News, to back away from its threats against alternative news site Barkingdogs.org, which directed people to the publication's internal pages. But he fears others might be afraid to stand up to legal browbeating.

Free speech fears
"There's a danger free speech will be stifled," Levy said. "If word gets around that you threaten and follow up on threats, people will take your links off their site."

Belo did not respond to requests for comment.

Levy compares deep linking to the offline act of including citations at the bottom of a research paper. Researchers are allowed to direct people to specific pages of a physical newspaper; in the same way, they should be able to link to the relevant page on a site, he said.

"Though the online world and newspapers are different, the same principles ought to apply," he said.

Whether such rules will cross into the online world is unclear. In the Danish case, the Danish Newspaper Publishers' Association has asked for a preliminary injunction that would stop Newsbooster from linking to its members' back pages.

It's too early to say whether a ruling in the Danish case would have ramifications for the Internet at large. The ruling's effect would largely depend on how broadly the order is worded and whether foreign countries and companies take it into account. The issue is doubly confusing because laws surrounding both deep-linking and Web jurisdiction are still being shaped.

Because free-speech laws generally protect criticism or not-for-profit speech, attorneys say a site that links to back pages of a newspaper or publication for the purposes of sharing information may triumph in a court battle. However, the issue is muddier for companies that seek to make money by linking to the pages inside a rival's site. Although companies can cite the Tickets.com victory, attorneys say they must be careful not to violate laws prohibiting deceptive business practices.

Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation, says it's inevitable that someone will bring a deep-linking case where a lot of money is at stake. He said the issue isn't making many waves these days because most companies don't have the manpower or funds to sniff out sites that link to their pages and to file lawsuits against them. But he fears that when the economy turns around, more Web-savvy companies will crack down on deep linking in an effort to shepherd traffic to their ad-laden front doors.

"This could potentially break the Web," he said. "The Web is based on linking."

Von Lohmann said he hopes courts deciding any future deep-linking cases understand that a link simply directs people to a certain location--in the same way someone on a street corner can point you to a specific landmark or shop--and should be protected free speech.

"You have to remember what a link is," he said. "All a link is, is a scrap of text that's equivalent to a set of directions. It's really tantamount to telling someone how to get to a bookstore."