David G. Post
American Lawyer, "Plugging In," July-August 1997
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For three years I have been suggesting in this column that as more and more activity migrates to cyberspace (and as those activities come to have more and more financial consequences), we will be presented with a host of new legal questions and an increasingly uncomfortable fit between our pre-existing legal doctrine and new activities. Recent activity in federal district court provides a nice illustration of what I had in mind.
As everyone surely knows by now, the World Wide Web is a "hypertext" medium, allowing website creators to easily insert "jump links" to any other pages on the system. Indeed, this hyperlinking capability may be the Web's most fundamental and revolutionary feature, as the aggregate of millions of these individual hyperlinks creates a truly global interconnected web of information.
It was surely inevitable that disputes would arise about the permissible scope of this activity. In fact, I have received several calls from people who have objected to finding a link to their web page on some website they deem unsavory for one reason or another -- in one instance, from a woman who placed a picture of her recently deceased daughter on a web page in honor of her memory, only to find it linked from a site labeled "Babes on the Net." Many of these disputes have been resolved informally. Nevertheless, we knew that eventually, as more money became involved, some disputants would turn to more expensive forms of dispute resolution (i.e., to litigation).
And sure enough, hyperlinking is at the heart of two recent lawsuits involving some pretty high-profile players. In one, a group of news organizations -- including CNN, Reuters, Time, and the Wall Street Journal -- has sued an Internet operation known as TotalNews. TotalNews.com is a website that brings together links to a variety of sources of news on the Web. Thus, by going to the TotalNews site, a user can find a page with a set of links to other websites providing political news (C-Span, The Economist, etc.), sports news (ESPNet, Fox Sports, etc.), and the like. Plaintiffs are objecting to having their web sites included on that set of links.
The defendant in the second suit is none other than Microsoft Corporation, which (among other things) runs Seattle.Sidewalk.Com, a city guide with information about upcoming events in the Seattle area. For those events that require tickets, Seattle.sidewalk informs you that you may be able to purchase tickets through Ticketmaster (and it both provides some information about Ticketmaster's operations and a link to the Ticketmaster website). Ticketmaster, like the news organizations involved in the TotalNews dispute, has filed suit in federal district court to try to prevent this.
Now, why would CNN, or Time, or Ticketmaster, object to a link to their pages? Isn't the whole point of having a web page to attract users? These hyperlinks are like referrals -- and one rarely hears of one party suing another for sending customers to their store. What's going on here?
In a word -- advertising (and advertising dollars). In both suits, plaintiffs are asserting that the way that defendants link to their page deprives the plaintiffs of advertising revenue that is properly theirs. TotalNews, for example, surrounds its web page with a "frame" -- a border that appears on the screen that contains advertising sold by TotalNews (or other messages that TotalNews wants you to see). Things get interesting now: if, say, you click on the link to ABC's web page, you will indeed see the ABC page -- but the TotalNews border continues to sit there, showing you the advertising that TotalNews has sold (which squeezes any advertising that ABC may contain into a smaller area on your screen). Similarly, Ticketmaster asserts that Microsoft, by linking to the Ticketmaster website, "has gained revenue from advertising made a part of Microsoft's website, depriving Ticketmaster of favorable advertising business" and that its actions constitute "electronic piracy."
These cases thus present the rather intriguing question: Does the law grant website operators any control over the manner in which individual hyperlinks to their site can be constructed? As the Ticketmaster and TotalNews cases (and the others that no doubt will follow) begin their journey through the legal system, two things strike me as noteworthy at the outset.
First is the way in which this question illuminates the way in which Internet legal questions are (and are not) "new." If you think about it a bit, the real world is full of hyperlinks; a footnote in an article, or an entry in a book index, is a kind of hyperlink, as is a business' telephone number listed at the bottom of an advertisement. The telephone book itself is nothing more than a collection of hyperlinks, and even a familiar commercial logo -- the golden arches, for example -- functions as a kind of "hyperlink" to a "database" of information about specific companies that consumers carry around with them in their heads.
Precisely because hyperlinking (of a sort) appears as a (small) part of so many different activities, there's lots of law scattered about the legal landscape governing hyperlinking activity. Many legal doctrines -- trademark law, copyright law, unfair competition, privacy, misrepresentation -- touch upon different aspects of the question regarding the extent to which hyperlinking-type activity is, or is not, permissible. We've just never had to gather it together into a coherent theory of hyperlinking or a coherent legal doctrine neatly labeled "The Permissible Scope of Hyperlinking." But in the face of a medium whose very existence and viability is defined by its hyperlinking capabilities, courts will have to do just that, drawing these disparate strands and fragments together into some sort of coherent whole. Litigation, of course, is an imperfect vehicle for constructing coherent doctrine. Plaintiffs will undoubtedly throw in as many different claims from as many of these pre-existing legal pigeonholes as they can, from relatively well-defined trademark infringement claims to the more "flexible" doctrines like commercial misappropriation and unfair competition, and see what sticks. But slowly, over the course of many such suits and court decisions, a sensible framework may indeed emerge.
Slowly, though, is the operative word. These two lawsuits have something else in common: both involve problems for which there are relatively simple technology 'fixes.' Ticketmaster can easily program its site to prohibit access to anyone coming in from Seattle.sidewalk.com, and, similarly, any news organizations can insert a few lines of code in its website program to prevent TotalNews from retaining its frames around the site. (Some, in fact, have already done so; if you're interested, go to TotalNews and explore the link to the New York Times website and -- presto! -- the TotalNews frame disappears). So you might ask yourself: if your client wants to protect its website against this framing activity, will it turn to its techies, or its lawyers, to be the first line of defense?
So while the legal system plods on, we're probably going to see a kind of technological "arms race" involving these (and perhaps most) Internet property disputes. Technology can taketh away what it giveth; TotalNews will undoubtedly come up with a few lines of code of its own to defeat the Times' efforts, the Times will then respond with another trick, and on and on it will go. And this will all happen on "Internet time" -- the time frame of response and counter-response will be compressed and foreshortened, and independent of the comparatively glacial pace of legal change. (I'd even be willing to posit that the links discussed in this column may look very different by the time this is published). By the time the courts get around to providing an authoritative determination regarding the "right" of website owners to control linking to their sites, the technology of linking will probably look nothing like what we see today, and we may have long forgotten the conduct that started these disputes. The role of the courtroom as a place where rules of conduct are constructed may be substantially undermined in this context. Military officers are often derided for planning to fight the previous war -- do we lawyers face a similar fate?