Re: Linking and breaking news

On Thu, 04 Feb 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 must agree to a certain extent with Gloria's comment, and admit that phrasing my arguable proposition in the form of "custom and practice" might be pushing the envelope. I would like to clarify some issues, though.

At the most basic level, linking between commercial web sites, using names or logos which are trademarks of the linked to site, carries potential for the linked-to-site to claim trademark infringement or dilution. Since this is a trademark issue, the question of what constitutes a commercial site must be determined by trademark law. In addition, the question if linking is permitted or not permitted under these circumstances, is a matter of trademark law, not of custom and practice.

Rephrasing Gloria's question, does creating and posting a commercial web site in and of itself constitute an implied license to link to it using trademarked names or logos? To the best of my knowledge no legal precedent exists on this question. However, it must be pointed out that even assuming the existence of an implied license, it can always be revoked by a positive assertion of the linked to site.

How do commercial entities actually deal with linking linking between commercial sites? Has a commercial custom and practice developed? My argument is (and I present it solely as an argument on the basis of what seems to me to be happening) that commercial entities do ask permission before linking to other commercial sites using trademarked names or logos as links. "Ticketmaster" is a case in point. Only after negotiations between Microsoft and Ticketmaster broke down over the terms for linking from Microsoft's Seattle Sidewalk site to Ticketmaster's site, did Microsoft link to Ticketmaster - not only without permission, but against Ticketmaster's express objection.

As to a commercial entity deciding if someone else shall be permitted to link to its site -- see the Juno site (http://www.juno.com/) and the terms of linking listed there.

Judging by the responses of some of the CNI list participants to this posting, as well as my own professional experience in this matter, it would appear that cautious lawyers, advising their clients, will inform them of the risks of linking to commercial sites without first receiving permission, considering the potential for trouble. In this sense, legal custom and practice do seem to be developing in this yet-to-be-clarified area of law.

Brian Negin
<negin[_at_]cbs.gov.il> Received on Mon Feb 08 1999 - 11:35:51 GMT