Deep linking. Again.

Are deep links legal? Deep links are outgoing hyperlinks that do not lead to the front page of the hosting website. You may ask, what is the problem? That is how the Internet works, right? Initially, you would be right, as deep links were defeated in earlier copyright cases such as Ticketmaster v Microsoft and the famous Scottish case Shetland Times.

While the issue of deep links seems to have been solved for many years, I have been noticing that there seems to be a resurrection of deep links threats by commercial operators. It seems counter-intuitive to believe that the Web can operate without hyperlinks, and that in a lawyerly heaven we all need to ask permission to link into a page. However, there may be cases where companies may want to argue that incoming links deep within their sites is copyright infringement in some way or another. Witness the case reported in The Register, where Apple objected to a link posted in an online discussion forum to the PDF of the MacBook Pro manual. Their reason? Their email explains that:

“The Service Source manual for the MacBook Pro is Apple’s intellectual property and is protected by U.S. copyright law. Linking to the manual on your website is an infringement of Apple’s copyrights. We therefore must insist that you immediately take all necessary steps to remove the Service Source manual and any other Apple copyrighted material from your site and to prevent further unauthorized use or distribution of Apple intellectual property.”

How can Apple even claim that linking to their manual is infringing their copyright? The problem is that the law has changed since the young and naive days of Ticketmaster and Shetland Times. I’m afraid that Andrew Orlowski is yet again wrong (I’m losing count of the times he has misrepresented the law in his Register reports). The WIPO Copyright Treaty (WCT) created a “new” right given to copyright owners called “making available to the public“. Owners will have the exclusive right of “making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.” Looking at some of the letters from owners, it seems like some lawyers believe that this right includes deep linking.

I completely disagree for many reasons. Firstly, the author has already made the work available to the public, what the referring page is doing is telling other people how to reach the work via a link; the work is already available online in a place and time chosen by the owner. Secondly, there seems to be a reductio ad absurdum in the argument against deep links, as it would render the internet inoperable, and almost every single website in the world would be infringing copyright, opening the gates for unlimited claims by everyone against everyone else. If this argument held, bookmarks, favourites and search engine results would be infringing as well.

There has been a successful deep linking case after the two mentioned, and this is the Danish case of Danish Newspaper Publishers’ Association v Newsbooster. The case was that a news service called Newsbooster was linking and extracting paragraphs from Danish newspapers. This is different to the above argument for several reasons, but in this case the court ruled not under copyright, but based on the European Database right, ruling that the links consisted of unlawful extraction of data.

I think that this is still an open legal question, but I am highly sceptical of the copyright argument. By the way, the forum in the Apple case has changed the link since then, evidence that threatening letters work.

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