Re: Linking and breaking news

On Thu, Feb 04, 1999, Gloria 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.
>
> Does this custom and practice in the commercial field also forbid simply
> providing the URL to another commerin addition to the actual linking?
>
> With the variety of things going on on the Internet, are these really
> such settled questions that we can be talking with any great assurance
> about "custom and practice in the commercial field"?

I generally agree with Gloria's comments about the custom and practice on the internet. However, I think that the increasing commercialization of activities on the net will change this custom, at least for commercial sites.

As net advertising becomes more common and more significant to companies' bottom lines, and as long as ad rates (or revenues) are based on total hits, I think you can expect to see more and more companies objecting to the way others link to their sites, like Ticketmaster.

Though I have not been convinced that Microsofts actions violated any rights of Ticketmaster, and though I don't think Ticketmaster could have created a "custom of the internet" argument, it almost doesn't matter. If Ticketmaster's adversary were not Microsoft, but perhaps some mon-and-pop commercial site, would they have the resources to defend, perhaps in a far flung jurisdiction? Probably not.

I know that if I were advising a client today on linking to another commercial site, I would advise them, for example, to link to the main page, or, if they really wanted to link to a subpage, advise the target of this and be prepared to change if a demand was made. Unless the link to a subpage were a critical facet of client's web site and/or business, why would they want to risk litigation over it?

If someone objected to a link to their home page, I think I'd tell them to get lost. *That* doesn't pass the laugh test.

But who knows, perhaps there will be a definitive decision in the future blessing links of any kind.

Patrick W. Begos
Begos & Horgan, LLP
Westport CT and Bronxville NY
begos[_at_]ibm.net Received on Fri Feb 05 1999 - 19:51:54 GMT