Re: Linking and breaking news

On 02/04/1999, Gloria C. Phares <gcphares[_at_]pbwt.com> wrote:
>
> On Wed, 03 Feb 1999, Brian Negin <negin[_at_]cbs.gov.il> wrote,
> (among other things):
> >
> > While no law has been established on the questions raised in these
> > cases, it could be argued that a certain level of custom or practice
> > has developed in the commercial field: do not link without permission;
> > ...
>
> I'm curious to know what custom and practice you are referring to for
> this proposition? Just the fact that commercial sites have decided that
> they don't want to be linked to other sites? And what constitutes a
> "commercial field" for this rule of thumb? If a site operated by a
> not-for-profit offers links to commercial sites (using only their names,
> for identification, not their logos) because those sites may illustrate
> a point, have information that might be of interest, etc., is that in
> the "commercial field"?
>
> I would've said that the custom and practice of the Internet was to
> encourage and permit linking (I'm putting aside the Total News and
> Ticketmaster kinds of issues), and that by putting up a site, one
> was making the site available for what goes on on the Internet:
> visits from random readers and non-misleading links to and from other
> sites. Recently, however I've recently heard commercial entities
> claim -- adopting a sort of real property/trespass notion -- that no
> one can link to their sites without their permission. I assume they
> wouldn't object if someone were touting their products and directing
> someone to their sites to see for him/herself; if so, I would've said
> that the same principle allows a competitor to link in order to
> illustrate some disfavorable aspect of a product or practice.
>

Gloria raises an interesting point. One of my real reservations about the "norms" movement in legal scholarship -- at least, that branch that encourages deference to norms -- is that whether something is a norm may depend critically on whether you are a buyer or a seller. Linking may well be an instance in which the standard norm that permits linking is under challenge from commercial sites that don't like the practice. It's one thing to declare linking illegal (though I don't see any legal theory for doing so today), but it's quite another to give commercial site owners the power to change the law unilaterally.

Mark A. Lemley
Professor of Law, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

Information on UT's Intellectual Property program: http://www.utexas.edu/law/acadprogs/intelprop/

My publications list: http://www.law.utexas.edu/lemley/pubs.htm Received on Fri Feb 05 1999 - 16:47:49 GMT