See
Why Library Journal Called "CLICKING THROUGH" One of the Best Business
Books of 1999!
|
See
Why Library Journal Called "CLICKING THROUGH" One of the Best Business
Books of 1999! |
|
| ClickingThroughList 1.3 -- New Risks from Linking Your Site to Another Welcome to issue 1.3 of
ClickingThroughList. If you haven't
seen the Clicking Through Web site recently, please take
a look. In addition to a site
redesign, I have also put up archives
of this newsletter and tips
for Web site design contracts. I
welcome any comments on the site or its contents. The following article was
written specifically for this newsletter, and talks about two recent cases where
Web site owners faced legal sanctions not for their own sites, but for content
placed on others' sites to which they linked.
The question of link liability is one of the most challenging faced by a
business with a Web site, and while linking is generally legal, these cases
highlight the fact that it should not be done without some thought and risk
assessment. Feel free to drop me a
line at jezor@panix.com
with your thoughts on this issue. Linking to
Trouble: What Another Site Says Can Hurt You
As discussed in Chapter 1 of CLICKING THROUGH (beginning at page 74), the
decision to link your site to another is not always a simple one.
Choosing sites and linking methods (from clickable text to graphics to
frames) bring up design and liability questions alike.
Most commentators examining "link liability" focus on two
areas: whether the site to which you link may have business or legal objections,
and the propriety of the actual method of linking (see the Dilbert Zone
guidelines on page 82 of CLICKING THROUGH). Two recent cases have highlighted a
third risk from linking: getting sued for content on the site to which you've
linked.
The first case involves the Utah Lighthouse
Ministry, an organization critical of the Latter Day Saints (LDS), otherwise
known as the Mormons. According to
published news stories (for example, <http://www.nytimes.com/library/tech/99/12/cyber/cyberlaw/10law.html>
(free registration required)), the Lighthouse Ministry was recently found to
have infringed the Mormons' copyright in certain portions of the LDS'
"Church Handbook of Instructions" through links.
Initially, the Lighthouse Ministry published the documents on its own
site, but after LDS obtained a temporary restraining order against the Ministry,
it removed the documents and replaced them with links to three other sites which
themselves made the documents available in electronic form.
In the most recent decision, criticized by many Internet experts, Judge
Tena Campbell of the U.S. District Court in Salt Lake City held on December 6,
1999 that linking to the other sites' infringing information was itself
contributory infringement for which Lighthouse Ministry might be held liable.
The second case has much greater potential impact because of the number
and type of parties involved. On
December 27, the DVD Copy
Control Association, the coalition which manages copy protection for DVD
video discs, announced that it was bringing a lawsuit against a number of Web
sites which had published the source code for a method for playing DVDs under
the Linux operating system. The
DVD-CCA alleged that the Linux driver incorporated the DVD-CCA's trade secrets,
and could encourage or enable wholesale DVD piracy.
What makes this case particularly troubling is that named in the suit
were a number of other Web sites which had linked to the alleged infringers-these
defendants included the computer news site Slashdot
and hacker magazine 2600, both of which had
linked to sites containing the Linux code as part of their reports on the new
technology. As of this writing, a request for a temporary restraining order by
the DVD-CCA has been rejected by the court, but the litigation continues.
(Details on this case, provided by one of the many defendants, may be found at
(<http://www.dibona.com/social/dvd/index.shtml>).
This suit raises the specter that legitimate Web news sites like Slashdot
or more mainstream outlets could be brought into litigation on which they
report, merely on the basis of linking within the article.
This potentially jeopardizes the very interconnectedness with primary
sources which makes Web-based news reporting so useful to readers.
Both of these cases have involved controversial material, and the
Lighthouse Ministry in particular might be understood to have used linking
specifically as a way around an existing lawsuit. What about the vast majority
of sites, though, which link for informational rather than confrontational
purposes? What do these cases, and any others which may follow them, do
to the practice of linking which is literally the definition of the Web?
The short answer is that while these cases raise to some extent the level
of risk involved with linking, the underlying concerns have always been out
there, including:
Certain sites are at higher risk for litigation or other problems arising
out of their links. For example, if
your target audience is children or families, knowingly or even unknowingly
linking to sexually-explicit or other adult-only content can lead to trouble.
If your company is a large one, with perceived deep pockets, it is more
likely to be the subject of any litigation, and link-related lawsuits are no
exception. If you have very few
links on your site, your users may infer that the ones you've chosen have some
business relationship with you, even if they don't.
If your site takes a particular political or ideological position, your
choice of linked sites may raise eyebrows as well as objections.
Finally, links within frames on your site (which make the content of the
linked sites appear to come directly from your company) can increase your
potential for being held responsible for those other sites.
(See "Frames on a Web Site" on pages 87-90 of CLICKING THROUGH
for more discussion of these risks.)
What can you do, particularly if your site or its links may expose you to
greater risk? Given these recent
cases, you may choose to put in place more proactive risk management strategies
for links than you've used in the past. For example, instead of no notice to
your linked-to sites or an e-mail message about the link after the fact, you may
want to notify them in advance of your intention to add a link.
If you already provide advance notice, you may wish to consider actually
getting signed permission. If you
do link as part of a business relationship, it may be appropriate to add
language to the agreement in which each party indemnifies the other for
liability which may arise out of the linked-to content.
Links you have on your site should also be formatted and placed to make
it clear that the user is leaving your site and going to another. (By the way, I
do not endorse or control any of the sites to which this article links, nor do I
have a business relationship with any of them.)
Above all, it is critical to examine your linking strategy and choice of
linked-to sites, and to create procedures for regular review of the links and
the sites to which they connect. Links
can be a huge benefit to your users, and you should not shy away from linking. At the same time, remember that the links you choose will
have the same audience as the rest of your site, and you should treat the
selection and placement of links with at least as much care as you do the
description of your company or its products. --------------------------------
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and put this in the *body* of the message: unsubscribe clickingthroughlist THIS NEWSLETTER COPYRIGHT 2000
JONATHAN EZOR; ALL RIGHTS RESERVED. "CLICKING
THROUGH" AND "CLICKINGTHROUGHLIST" ARE SERVICEMARKS OF JONATHAN
EZOR. THE CONTENTS OF THIS NEWSLETTER
MAY BE FREELY RETRANSMITTED AND REPUBLISHED AS ELECTRONIC MAIL OR AS PART OF A
WEB SITE IN FULL UNEDITED FORM ONLY, EXCEPT THAT THEY MAY NOT BE SENT AS PART OF
UNSOLICITED COMMERCIAL E-MAIL. FOR INFORMATION OR PERMISSION
TO EXCERPT OR REPRINT IN OTHER MEDIA, PLEASE CONTACT JONATHAN EZOR
AT jezor@panix.com. THE INFORMATION CONTAINED IN
THIS NEWSLETTER IS INFORMATIONAL IN NATURE.
IT SHOULD NOT BE CONSIDERED LEGAL ADVICE, AND MAY NOT REFLECT THE
OPINIONS OF JONATHAN EZOR'S EMPLOYER OR ITS CLIENTS. For more information on
"CLICKING THROUGH: A Survival Guide for Bringing Your Company Online"
or Jonathan Ezor, see the Clicking Through Web site at http://www.clickingthrough.com. If you read and enjoyed
CLICKING THROUGH, please post
a review on Amazon.com or other Web site or recommend it to a friend or
colleague. Thanks!
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