The Case of the Critical Link
p2p news view / p2pnet: The hyperlink is one of the Internet’s most basic yet important features. The debut of the World Wide Web more than a decade ago brought with it the ability to instantly move from one site to the next at the click of a computer mouse. While most sites welcome links, a few do not. What if a website does not want others to link to it? Further, what if a website only wants supportive links, while maintaining the right to block critical links?
Those questions have been the subject of intense discussion this month after Access Copyright, a leading Canadian copyright collective, unveiled a copyright education website called Captain Copyright. The initiative faced vocal opposition as critics pointed to its one-sided presentation of copyright issues and the inclusion of lesson plans that ask grade one students to create their own copyright permission form or to envision whether their favourite song would exist in a world without copyright.
Captain Copyright critics were also troubled by the terms and conditions on the site that seemingly sought to shield the superhero from criticism. The site features a linking policy that stipulates that “permission to link is explicitly withheld from any web site the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright.”
After users objected to those terms, Access Copyright issued a revised policy that sought to justify its conditions by pointing to the need “to protect the moral rights associated with the site.” Moreover, the revised terms specifically withheld permission to link from sites “featuring pornographic, racist or homophobic content.”
Just days after the second linking policy appeared, the terms were changed yet again with the reference to moral rights removed. The current policy provides that Access Copyright has the right to withhold permission to link from any site that in its opinion may be damaging to its reputation, particularly sites featuring the objectionable content described earlier.
Notwithstanding the flurry of changes, it is doubtful that any version of the policy is actually enforceable. First, it is by no means certain that the terms and conditions associated with the site constitute a binding contract. All contracts require offer and acceptance – an offer from one party and the acceptance of the offer from the other.
While the offer side of the equation in the form of terms and conditions is certainly present, acceptance of those terms is only inferred by use of the site. In fact, the contract explicitly states that “your initial use and continued use of this Website indicates your acceptance of the Privacy Policy and Terms of Use.”
Given that few people typically read the terms and conditions and that users do not provide Access Copyright with a formal acceptance (for example, by clicking an “I agree” icon), enforcement of the entire contract is subject to challenge.
Even if it could be enforced, the specific linking provisions are unlikely to withstand legal scrutiny. Several courts in both Canada and the United States have addressed the legal issues associated with linking, with most concluding that links do not raise any copyright concerns.
Aside from the fact that links are pervasive on the Internet – everyone from Google to a modest homepage rely on them – restrictions make little sense from a technological perspective. A hyperlink is no more than an electronic citation. The party establishing the link maintains no control over the display of the linked-to page nor its actual content.
The world is filled with citations – phone directories tell us where to find service providers or retail stores, newspapers tells us where to find events of local interest, and card catalogues in libraries tell us where to find books of interest. A hyperlink is no different as it simply tells Internet users where to find a particular piece of content.
In the case of Captain Copyright, it is irrelevant whether the citation comes from a critical blogger or a supportive school board (a number of boards, including the Halton District School Board, linked to the site only to remove their links once the controversy erupted). Permission is not needed to link on the Internet and it cannot be denied in legal terms and conditions.
When Access Copyright chose to freely display its content on the World Wide Web, it surrendered the right to restrict who might link to the site or comment on it. That would be true of any organization, but the principle should resonate particularly strongly with Access Copyright, given that it is a copyright collective whose members rely upon freedom of speech for their livelihoods. If Captain Copyright teaches us anything, it is that he should be powerful enough to withstand a little criticism.
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at www.michaelgeist.ca.]
Digg this story.
Also See:
Captain Copyright – Canada’s Captain Copyright, June 1, 2006
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June 13th, 2006 at 4:13 pm
They try to impose a linking policy withholding permission to link from any web site they don’t like “to protect the moral rights associated with the site.”
They can hide under any slimy boiler-plate they want as long as it’s legal, but what is this asinine “moral rights” crap?
June 14th, 2006 at 12:39 am
Some jurisidictions – not the USA – but Europe and Australia as examples, have provisions in their copyright to protect authors from having the integrity of their creations from being distorted or mutilated – they survive even when the copyright has been sold or passed to the control of another:
http://en.wikipedia.org/wiki/Moral_rights
Not being Canadian myself I have no idea whether your copyright law has moral rights entitlements… but even if there is, Michael seems to be suggesting that they would not be applicable in these circumstances
cheers
Sal
June 14th, 2006 at 7:21 am
You need not have even visted a website and been subjected to some sort of ‘agreement’ in order to create a hyperlink to the main page of that website. All that one needs to know is it’s domain name. Anyone can look up a domain name and the corresponding ‘whois’ information. Domain name holders can not place any restrictions on someone from merely looking up their ‘whois’ info. These implicit linking agreements are not a valid contract anyway, as you have no means to decline them once confronted with them. It’s much like stepping in dog poop. <Click> oops……
In the USA, the court decision regarding linking have split depending on exactly where the link goes. Linking to the main page of a website by using a referrer such as http://www.somewebsite.com/ which takes the user to the default page of that website has, without exception, been permissible no matter how much the site owner has objected. There is neither a trademark or copyright issue with this type of linking, as it is merely referential.
“Deep linking” (burrowing into the site using a complex referrer, to a specific webpage, particularly on sites that use ASP or JSP) has been deemed impermissible in certain specific cases of a commercial nature (re: The Tickermaster case because the linker was freeloading information the website holder shelled out payment for (venue seating plans with current availability info) without compensating the site holder) but so far has not been deemed impermissible in siutations involving potentially controversial political issues, such as copyright.
Perhaps “Captain Copyright” needs a foil named “The Fair Use Fairy”, a sprite who appears to reign him in whenever the Captain is about to overstep his bounds or engage in spewing IP industry un-truths, spin or propoganda?
–TurboGeek
June 14th, 2006 at 4:18 pm
The concept you describe sounds valid to me. Using the term “moral rights” to describe it is very misleading IMHO as it implys that these “rights” somehow extend beyond legal rights. If a creator of a copyright work can take someone to court for distorting or mutilating their work even after they have sold the rights has very little to do with morality. It’s still a legal rights issue. What can I say, I’m a semantics nurd.