

Linking to free web content is legal, says EU Court - debugunit
http://www.bbc.co.uk/news/technology-26187730

======
lkrubner
The USA had a similar ruling back in 1996. Many people were engaged in "Deep
Linking", that is, linking to a page that was not the front page of the
website. The plaintiff won the case and it was briefly illegal to link to
anything but the front page of the sites. This was overturned shortly after.

Nowadays, we refer to "deep linking" as "linking", but it was legally
contested for a long time. This was published as late as 2004:

""Deep linking" is a special kind of hyperlink: it defeats the remote
website's intended method of navigation, taking one to a page deeper than the
home page [4] A deep link leads the user to an interior page of a website,
rather than to the home page thereof. "

Searching on Google, I see that the courts, in the USA and Europe, were
ambivalent about deep linking, in the mid 90s when the Web was just emerging.
For instance:

[http://www.linksandlaw.com/linkingcases-
deeplinks.htm](http://www.linksandlaw.com/linkingcases-deeplinks.htm)

"The lawsuit against an online news search engine which allowed users access
to articles in the database of the plaintiffs via deep links was based on
paragraph 87 b of the German copyright law (UrhG). This paragraph derives from
European Union Directive 96/9/ECC of March 11, 1996. A decision, which had
banned deep linking by search engines to databases could have influenced other
EU member states' jurisprudence and caused significant difficulties for search
engines outside the European Union as well. "

also:

"Shetland Times v. Shetland News

"In 1996 the Shetland Times newspaper filed a lawsuit against the Shetland
News for linking to Times' articles. Scotland's Court of Session issued an
interim interdict banning the links. Before Scotland’s highest court could
rule on the legality of the links, the two publishers settled the case."

also:

[http://www.ibusinesslawyer.com/cyberlinks/linking.htm](http://www.ibusinesslawyer.com/cyberlinks/linking.htm)

"Ticketmaster Corp. v. Microsoft Corp., No. 97-3055 DDP (C.D. CA, complaint,
filed 4/28/97) First major linking case in US. Microsoft's "Sidewalk" site
allowed visitors to buy tickets to entertainment events via "deep" link to
Ticketmaster site. Ticketmaster alleged trademark dilution and other unfair
competition causes of action. Case settled on undisclosed terms, although
Microsoft removed its deep link."

"Ticketmaster Corp. v. Tickets.com, Inc., CV99-7654 HLH (BQRx) (C.D. CA, Mar.
27, 2000) [requires acrobat reader to view] Tickets.com deep linked to
Ticketmaster's site to provide its visitors the opportunity to buy tickets to
certain events. Court dismissed contention that linking constituted copyright
violation, because there was no literal copying. Court also found that absent
specific evidence of assent, allegation that defendant breached site's "terms
of service" failed to state a claim. Literal copying claim and certain unfair
competition claims not dismissed, however."

This is from the American Library Association:

" "Deep linking" is the practice of providing links to interior pages within a
Web site without directing people using the link through the host site's main
page. Some site owners see deep linking as problematic because it takes
control over the viewer's experience away from them and may create confusion
over whose site is whose. For sites with commercial advertising or
subscriptions, for example, deep linking may mean users get to see the content
of the site without having to "pay" for the information by first accessing
advertisements placed on a welcome page or by paying for the subscription.
Other people see linking as a necessary part of Web design and argue that deep
links actually provide a service by steering users to the linked sites."

and also this:

"Some court decisions have been seen as very supportive of linking. In 1997,
in an opinion striking down a Georgia Internet statute, a federal district
judge suggested that the practice of linking is protected by the First
Amendment (ACLU of Georgia v. Zell Miller). In a federal court in September
1998, a California judge dismissed a suit in which the plaintiff claimed that
the defendants maintained Web sites that included links to a Swedish site
containing copyright infringing material. The court ruled that the copyright
infringing material was "several links removed" from the defendants' site
(Bernstein v. JC Penney, Inc.)."

Needless to say, Google (and Hacker News) would be illegal if deep linking had
been banned.

~~~
edj
_This was published as late as 2004:

""Deep linking" is a special kind of hyperlink: it defeats the remote
website's intended method of navigation, taking one to a page deeper than the
home page [4] A deep link leads the user to an interior page of a website,
rather than to the home page thereof. "_

Wow. This sounds so anachronistic today it's hard to believe it was written
only 10 years ago.

~~~
pessimizer
Overton Window; memories are disturbingly short and we use them to anchor.
Related: I forgot about the utter vileness of Zell Miller:)

~~~
dublinben
I think that's a misuse of the term Overton Window. It has more to do with
selective memory.

------
jfasi
> The "position would be different" for links that bypass a paywall.

This is interesting. It seems there is a growing burden on consumers of
information to understand the intent set up by website owners and technology
maintainers: Aaron Schwartz died because his use of curl was deemed hacking. A
judge here is making a distinction between linking and linking that bypasses a
paywall.

I'm afraid that people will one day be required to divine whether or not a
site was meant to be viewed by them: suppose page A displays links to a
paywall-less version of page B when the user agent is "GoogleBot" in order to
allow news to be indexed. Meanwhile, all other user agents see a link to a
paywalled version of page B. Suppose a bug causes that page to display
paywall-less links to all agents, and visitors to that page follow through to
the non-paywall version of page B.

Under this interpretation, visitors to page B's non-paywall version could be
exposed to allegations of unauthorized access to computer systems (or its EU
equivalent) and be charged with hacking. What's worse, it seems the burden to
prove that the link was shown to them in a legitimate fashion falls _on the
accused_ , and there's basically no way they can prove that.

I'm not a lawyer, so my interpretation could be way off, but this seems like a
credible threat.

~~~
tekacs
I came here with the same quote copied to my clipboard to say pretty much
this.

The idea that the incompetence of paywall implementers should be patched up by
the law and consideration of clients' intent is worrying at best and honestly
closer to insane.

If paywalls are implemented by covering page content with a white rectangle,
will viewing source be considered unauthorised access?

If they are implemented by putting a large notice prohibiting unauthorised
users from scrolling down, will such a notice stand up?

In both of these cases, the intent of the user viewing the content is clearly
to bypass protection mechanisms that were put in place, but if such
protections are implemented so incompetently, the burden (as it seems to be in
real life, w.r.t. trespassing and similar laws) could well fall upon the
consumer.

My suggestions get closer and closer to hyperbole but from a technical
standpoint some of these 'protections' are scarcely distinguishable from some
of the simple, meaningless protection schemes that have already been enough to
trigger unauthorised access laws. :/

~~~
BrandonMarc
I think there's a legal doctrine along the lines of "open door" or "unenforced
property", wherein if a person does not put up a minimum standard of defense
of their property, there are limitations to what legal protection they have
against trespassing and theft.

For example, if I leave my house with the doors wide open, all the time, I
think the doctrine means I can't accuse people of breaking in if they simply
walk in ... especially if they do so repeatedly without me doing anything to
stop it.

Similar if my property has no fence, gate, locks, etc and people are in the
habit of walking across it - and I haven't taken ordinary measures to stop
them - then I can't accuse people of trespassing.

The examples are not great, and I don't recall what it's called ... but I
believe there's a legal doctrine along those lines.

Oh, and, IANAL.

~~~
pessimizer
[https://en.wikipedia.org/wiki/Weev](https://en.wikipedia.org/wiki/Weev)

------
kzahel
I wonder if it will become illegal to change my user agent someday.

~~~
skywhopper
It will when and if a lawmaker ever understands what a user agent string is.

~~~
thwarted
User Agent is the new evil bit.

