When most people think of the Internet, they think of the World Wide Web, a graphical front-end for billions of individually-coded pages of content. This content is connected by hyperlinks, which allow the user to jump from one page to another with the simple click of a mouse. Although some argue that the architecture of the web is premised on the use and availability of these hyperlinks, the owners of some proprietary web sites have objected to free linking to their sites, particularly to pages "deep" within their sites. This practice of "deep linking" enables a viewer to go directly to a page of interest, bypassing the site's front page and, presumably, advertising contained on the front page.
In our June 7, 2000 Internet Alert, we discussed the case of Ticketmaster v. Tickets.com, in which a U.S. District Court in California held that "deep linking" was permissible, and that the practice did not constitute copyright infringement, unfair competition or breach of contract. This year, the Ninth Circuit in Kelly v. Arriba Soft also tacitly affirmed that simple hyperlinking, without "framing" of web pages, did not constitute infringement (see our February 20, 2002 Internet Alert).
Despite the rulings in Ticketmaster and Kelly, a number of companies in the United States have recently attempted to curtail the practice of deep linking to their web sites. Moreover, courts in both Germany and Denmark have recently ruled that deep linking may not be permissible under European law.
The U.S. Debate
The debate over deep linking was renewed in the United States this year when two news organizations, the Dallas Morning News and National Public Radio (NPR), each attempted to prohibit deep links to news stories on their web sites. Each of these cases resulted in a storm of public controversy. The public interest news site to which the Dallas Morning News issued its cease and desist letter (barkingdogs.org), is being represented by Public Citizen, and it appears that the newspaper has taken no further action on the matter. Likewise, National Public Radio, which recently implemented a policy requiring other sites to get NPR's permission to hyperlink to NPR, withdrew its policy following a barrage of public criticism.
The European Database Right
Opponents of deep linking have been more successful in Europe than in the United States. The reason may be that, unlike the United States, the European Union has implemented legislation explicitly protecting databases. Thus, while deep linking cases in the United States have been brought (unsuccessfully) on grounds of copyright infringement and unfair competition, the database right seems to give European content owners a stronger weapon with which to stave off deep linkers.
The EU database right was established in Directive 96/9/EC. Its aim was to harmonize the law of the EU members states in relation to databases, which were protected in some EU Member States by copyright. The Directive confirmed the copyright protection existing in certain EU Member States and created an additional sui generis right for databases that meet certain requirements.
Under the Directive, a database is defined as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. The database right, which exists independently of copyright, allows the maker of a database to prevent extraction and/or re-utilization of the whole or a substantial part of the database, provided that the maker can show that there has been a substantial investment in either the obtaining, verification or presentation of the contents.
Some recent European court cases have raised important issues in relation to whether a collection of newspaper articles consists of a database, so that deep linking to such a collection would constitute an infringement of the maker's database rights.
The Danish Case
Newsbooster provided a regular online news update service to its users by searching online newspapers on a regular basis. Newsbooster would then compile a newsletter consisting of headlines and deep links into relevant articles. Its users could therefore access articles of interest directly, bypassing the relevant newspaper's front page on which advertising could be found.
The Danish Newspaper Publishers Association (DDF) obtained an injunction against Newsbooster's activities on the basis that:
- the text collections of headlines and articles which make up an online newspaper constitute a database because the selection or compilation of relevant texts and the detailed display of such collection on a web site is the result of structured systems;
- Newsbooster's deep links to articles and compilations of headlines were a repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database such that they damaged the investment made by the maker of the databases and were thus infringing;
- the deep linking into the articles avoided the newspapers' advertisements from which the online newspapers generated revenue;
- the service offered by Newsbooster was based on subscription payments and the infringers were gaining an economic advantage at the database right owner's cost; and
- Newsbooster's activities contravened the fair marketing practice provisions under Danish law.
The German Cases
The legality of deep linking into pages of online newspaper magazines has been the subject of legal proceedings in Germany in at least three instances (see e.g. http://www.newsclub.de/ and http://www.net-clipping.de/) Mainpost v. Newsclub, SV online GmbH v. Net-clipping and Handelsblatt vs. Paperboy. For a Newsclub press release discussing those cases, click here. In these three cases the defendants provide similar press update services. The German lower courts have reached differing conclusions in these cases.
In the Newsclub case, the Regional Court in Munich decided that the online news update service was unlawful and violated the database rights of the plaintiff. The 6th Division of the Higher Regional Court in Munich has just confirmed this decision.
In contrast, in the Net-clipping and Paperboy cases, a different chamber of the Regional Court in Munich and the Higher Regional Court in Cologne considered such services as being lawful. The Paperboy appeal has been challenged and is now with the German Federal Supreme Court (BGH), which has yet to reach a conclusion.
The courts considered several legal theories in coming to their conclusions. The first is the so-called unfair appropriation of a third party's performance, governed by Sec. 1 of the German Act Against Unfair Competition (UWG). The courts that dealt with this issue took the view that the mere creation of a deep link does not violate this provision, since the user of the link does not necessarily believe that the linking party has created the article. The link is only intended to enable the user to access the article, which was itself put onto the web by the publishing house. The second theory is based on copyright protection of the newspaper article to which the link resolves. In the case of deep linking, it was decided that the copyright is not infringed because only a small part of the article is used in creating the link itself; copyright is only infringed if a substantial part of the copyright work is reproduced without permission.
In addition to these theories, however, the German court in the Newsclub case considered the database protection of the newspaper databases. It took the view that the collection of articles and headlines in an online newspaper creates a database protectable under Sections 87 a-e of the German Copyright Act (UrhG) which implemented the provisions of Directive 96/9/EC. In the Newsclub case, the court held that the behavior of Newsclub violated the database rights of the database owner because it leads to a systematic and repeated (every few minutes, according to logfiles of the plaintiff) reproduction of immaterial parts of the database, an act which unreasonably violates the rights of the database producer. Such violation was exacerbated by the fact that, through deep linking, the user would by-pass certain banner advertisements on the front pages of the database producer. However, the courts in the Net-clipping and Paperboy cases considered this same theory of violation of the database owner's protected database rights, and rejected those arguments.
Given the inconsistent legal treatment of deep linking in the United States and Europe, online enterprises wishing to establish deep links to commercial sites should proceed with measured caution. While the courts in Europe have not reached a definitive position on the prohibition of deep linking, the trend in Denmark and Germany appears to be favoring the rights of database owners over those of linking organizations. And although the United States has not implemented database legislation comparable to that adopted in the EU, prospective linkers in the United States should not rest too easily. Alternative theories such as "cybertrespass" have arisen to enable U.S. online database owners to prevent unwanted access to their data (see our October 22, 1999 and May 9, 2002 Internet Alerts). Given the level of recent legal activity in this area, developments in the near future may determine the fate of unfettered deep linking in both the United States and Europe.