The Evolving Law of Linking

By Robin D. Gross
March 1998

As the popularity and accessibility of the Internet soars, businesses are realizing the commercial potential it provides.  Where money flows, lawyers naturally follow and what used to be considered a business courtesy can now create liability for a person or business operating in cyberspace.  The practice of Internet hyperlinking, or "linking" to another's web site has come under attack recently by intellectual property attorneys claiming it may constitute an act of unfair trade practice or trademark infringement.

The pending case of Ticketmaster Corp. v. Microsoft Corp. filed in the U.S. District Court for the Central District of California addresses the issue of whether Microsoft violated unfair competition laws by linking deeply into Ticketmaster's website, bypassing its home page and advertising, extracting the relevant concert information, and presenting it to the users without Ticketmaster's authorization. 

Ticketmaster's complaint alleges that "Microsoft has created a likelihood of confusion in the minds of the consuming public that Ticketmaster has associated with, approved of, sponsored, endorsed, or is otherwise affiliated with Microsoft's web site."  It also states, "Microsoft is feathering its own nest at Ticketmaster's expense.  It is, in effect, committing electronic piracy."  Microsoft contends that it has an implied license to access the site, claiming, "any business, such as Ticketmaster, participating in the Internet and the World Wide Web invites other participants to use the business' Internet addresses and URLs to contact it."

A recent hyperlinking case was decided in the U.S. District Court for the Northern District of Georgia where the court arguably created a new First Amendment "right to hyperlink." ACLU of Georgia v. Miller, 43 U.S.P.Q.2d 1356 struck down a statute which made it a crime to knowingly use on the Internet a trade name, registered trademark, logo, copyrighted symbol which falsely stated or implied that permission was granted to use it.  According to the holding, the statute required web page publishers to "include symbols designating other web pages which may be of interest to a user.  This means that an entity or person's seal may appear on hundreds or thousands of other web pages, just for the purpose of enabling the linking system."  The court ruled that the act prohibited such protected speech as the use of trade names or logos in non-commercial educational speech, news and commentary - a prohibition with well-recognized First Amendment problems.  The court went on to state, "the appearance of the seal, although completely innocuous, would definitely 'imply' to many users that permission for use had been obtained. Defendants have articulated no compelling state interest that would be furthered by restricting the linking function in this way."

Microsoft asserted a First Amendment defense in its answer to Ticketmaster's complaint, however the commercial nature of Microsoft's use of Ticketmaster's site makes it unlikely that the defense will prevail in this case.  The right to link created by the court in ACLU applies only to linking for non-commercial use.  A decision in the Ticketmaster v. Microsoft case is widely anticipated by intellectual property and Internet attorneys to more clearly articulate a legal standard.  Although the legality of linking is still unclear and virtually untested in court, each decision paves the way for a new and growing body of law.

© 1998 Robin D. Gross