Computer Law 484 Professor Richard H. Stern Supplemental Material on Linking

Last updated 4-5-02

I.   Shetland Times Controversy

• Link to the opinion of Lord Hamilton upon issuing the Interim Interdict of the Scot. Ct. of Session (Edinburgh, 24 Oct 1996) in Shetland Times Ltd. v. Wills

• Link to parties' settlement agreement dismissing case

Now, consider the following second notional web page:

Professor Wary's Web Page Hello, there all you eager students of copyright law. Today, we're going to consider the celebrated controversy between The Shetland Times and The Shetland News, which was brought in Edinburgh, Scotland, under the UK Copyright Act of 1988. First, I want you to consider a cartoon image that you can obtain by clicking here. Curiously, it represents the defendant Jno. Wills. That is how his former employer, the Times, with which he has had a bit of a falling out, has chosen to depict him. Notice his somewhat Bolshevik appearance. No doubt, that is how his ex-employer perceives him. But, tell me, students: which party in this copyright infringement lawsuit was really the one crying, "It's mine! All mine!"? By the way, I would like you to consider that the pertinent code I wrote in order to provide you with that image of Jno. Wills was the following (in HTML): <a href="http://www.shetland-times.co.uk/st/internet/pics/wills.gif">here</a> The effect of that code which I wrote was to permit you, if you so chose, to click on the hyperlink and (as a result of your intervening volitional act) to cause your browser to fetch from the Shetland Times' server the image of Jno. Wills, and to present it to your screen in a new window unaccompanied by the text of my Web page. (This kind of link is usually what is meant when the term "link" is used. It's also called an HREF link -- a Hypertext REFerence link. It has also been called an "external link." There is another kind of external link, which is somewhat more conservative or is more suitable for the timorous. But I will let my colleague, Professor Warier, tell you about it.)

Now, consider the following third notional web page:

Professor Warier's Web Page Hello, there all you eager students of copyright law. Today, we're going to consider the celebrated controversy between The Shetland Times and The Shetland News, which was brought in Edinburgh, Scotland, under the UK Copyright Act of 1988. First, I want you to consider a cartoon image that you can look at if you go to this link to this editorial Web page of the Shetland Times and scramble through the advertising and other tendentious material of that Web page proprietor. Eventually, you should be able to find the image of Jno. Wills as his former employer, the Times, with which he has had a bit of a falling out, has chosen to depict him. I might have directed you more directly to the image per se, instead of to the whole Web page on which the image appeared as a component, but I did not want to run afoul of the somewhat ill-tempered and litigious copyright owner. He says that he wants material on his Web pages presented to viewers exactly as he contemplates, with absolutely no modification of any kind, and that he will sue any and all "deep linkers" and "inline linkers." While I am not quite sure what those terms mean, I am not eager to find out by reading about them in a complaint naming me as defendant. In this regard, I am a little concerned by the opinion of the Ninth Circuit in Arriba Soft and by some of the assertions made in the briefs of Kelly and his amici. You may consider pertinent the code that I wrote in order to help to provide you with access to that image of Jno. Wills. It was the following (in HTML): . . . link to <a href="http://www.shetland-times.co.uk/st/ internet/pics/Wills-Editorial.htm">this editorial Web page of the Shetland Times</a> and scramble through . . . If you think that I am timorous, you should check out the Web page of my colleague, Professor Wariest. He won't even link directly to the editorial page containing the editorial about Wills and cartoon depicting him. Instead, Professor Wariest provides a link to the home page of the Shetland Times, which has a link to its editorial page containing the editorial about Wills and cartoon depicting him. I understand that there is still another copyright professor (his name escapes me--something like Most Wary of All) who provides no link at all but simply states that you can find material of such and such a nature at such and such a URL. You cannot click on any link to get there; you must copy or cut/paste the listed URL to your browser's address window. You don't suppose that what he does could nonetheless be some kind of contributory copyright infringement, do you? Could it depend on just what he states when he advises that you can find material of such and such a nature at such and such a URL? Could it make a difference whether his text recites the URL of the page or gives the URL of the image itself?

Now, consider the several notional web pages in terms of the provisions of section 106(1) of the 1976 U.S. Copyright Act. Now, consider section 106(2). Section 106(3). Are there any differences in the legal status of the respective web pages of Professors Hapless, Wary, Warier, Wariest? (Forget about fair use, implied license, and all that for the moment. Just section 106.) Now, consider section 106(5) and this 2002 opinion of the Ninth Circuit (go to the part near the end). You could write half a dozen different term papers on what's right or wrong with this opinion. 1

All right, forget about the legalities. What about economic effects? First, is there any difference in web traffic effect of the following different ways of putting that WILLS.GIF on your web page:

Does it make a difference if that is just a notice somewhere on the page (say, at the bottom) or if the Web page puts it on a Welcome page, with a script (or even a simple pair of links) to make you click YES I AGREE! before you can proceed? See this opinion from C.D. Calif.

III.    Links to commentary.    Here are some links to commentary on this case, and some related links, which you may find of interest if you are planning to write a paper on the subject:

• Suppose that one or more of the following linked pages contains an unauthorized reproduction of material from Prof. Hapless' book, The Enigma of © Law. Am I committing contributory infringement by providing this link? What are the elements of contributory infringement? See Netcom, which begins at p. 193 of the 1998 edition of the Casebook. Are all the requisite elements present? See p. 199. What about distribution under section 106(3)? Are all the elements present? What about public display under section 106(5)?

• CNET story on settlement of Shetland case (Nov. 1997)

• "Link to Me and I'll Sue You" - Dvorak op ed piece in PC Mag (May 1997) on Ticketmaster suit against Microsoft

• <a href=idiotic>, - Scott Rosenberg story in Salon (May 1997) on Ticketmaster suit against Microsoft

• "A Ticket to Deride" - Another story about the Ticketmaster - Microsoft suit (May 1997)

• Ticketmaster's complaint against Microsoft

• Microsoft filed a very well articulated answer to Ticketmaster's Complaint (asserting implied license, contributory negligence, voluntary assumption of the risk, etc. arguments), but the Answer mysteriously vanished from the Web. This link is to a short excerpt, taken from a secondary source based on the now vanished links. (However, thanks to the creation of the Wayback Machine of www.archive.org it has now become possible to recapture Microsoft's Answer to Ticketmaster's First Amended Complaint.)
  
  The case was settled in February 1999, on confidential terms. But Microsoft stopped the deeplinking and instead used a link to Ticketmaster's home page. For a New York Times "Cybertimes" story on the settlement, see Bob Tedeschi, "Ticketmaster and Microsoft Settle Linking Dispute."

• Ticketmaster v. Tickets.com - two opinions of C.D. Cal., 2000 - denial of motion to dismiss and denial of preliminary injunction in deep linking case (hyperlink not copy)

• ''What's all the hype about hyperlinking?'' - article by a pratitioner and a law student about links, deep links, and framing

• Keuster and Nieves, Hyperlinks, Frames and Meta-Tags: An Intellectual Property Analysis, 38 IDEA: J.L. & Tech. 243 (1998) - later version of preceding item

• If you select this button (click on the black and red letters), it will give you more links to pages on linking than you could possibly want to know about.   Mr. Bechtold's page is surely the ultimate page on linking.   He updates it from time to time, so that you may wish to revisit it periodically to pick up his new links to additional material.

• Here is a link to some discussion on the Usenet about a technological approach to deep linking and framing problems.

• Here is a link to a Web page of Alta Vista in which it explains to Web page proprietors what to do if they do not want Alta Vista's spider to grab a link to their sites - use robots.txt or use an appropriate go-away metatag. (FYI, the metatag is: <META NAME="ROBOTS" CONTENT="NOINDEX, NOFOLLOW">)

• Link to article on search engine copyright disputes: "Internet Search Engines Face Infringement Claims"

• To read about the experiences of a Princeton grad CS student with the publisher of "Dilbert," when he linked his web page to Dilbert, using <img src=...> links, see The Dilbert Archives .

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Click on email address link — rstern@khhte.com — for an email “mailto” for Professor Stern. And here’s an alternate one — rstern@computer.org — at IEEE Computer Society.