[LINK] Legality of Linking, incl. 'Deep Linking'

[Ivan Trundle]

Dear Roger

I agree with your rationale over linking.

I think that part of the problem might stem from the jargon employed by
those who should probably know better (me included). 

A more accurate definition of deep linking (a wrong term, if ever there
was one), as far as I can work out, is framing or other appropriation of
of external content. The amount of 'deception' or 'fraud' depends on how
the material is displayed, but in any event, my view is that anything
more than offering a link from one site to another, which leads to a new
window that leaves the existing site, can be construed as a level of
misappropriation - but only if no consent is given to the act of framing
or otherwise displaying external material that constitutes more than a
'link'.

...and yes, what an over-engineered site. A joy to marvel over how some
people have more time on their hands than any of us.

Ivan Trundle


--
Ivan Trundle
Manager, communications and publishing
Australian Library and Information Assocation
PO Box E441 Kingston 2607 Australia
phone 02 6215 8232 fax 02 6282 2249
ivan.trundle at alia.org.au http://www.alia.org.au

>>> Roger Clarke <Roger.Clarke at xamax.com.au> - 31/3/03 3:27 PM >>>

At a (hopelessly over-designed) EU site at:
http://www.ipr-helpdesk.org/controlador.jsp?cuerpo=principal&seccion=guias&guia=guia1&len=en

Q.5 reads as follows:

5. What are the rules to be followed with regard to hyperlinks and
framing ?

Creation of a link to another site does not generally require the 
authorization of the copyright owner on the linked website. Indeed, 
one considers that the creator of a website gives his tacit consent 
to the linking.

However, some other rules than copyright may be applied.

Certain type of linking such as framing may be considered as illegal 
if it misleads the user on the identity of the true owner of the 
website.

Other practices such as deep linking (when a link  refers to another 
page than  the homepage) may be considered as an unfair practice. 
Indeed, the calculation of the traffic on a website (from which 
depends the advertising income) is often based on the frequentation 
of the homepage.  A deep link will then reduce the advertising income 
of the linked site.

[1.  That's useful.  It would be even more so if only you could link 
directly to it, because then we could all point to it when people 
misguidedly ask us for permission to link to our sites.   (The site 
uses Javascript where a link would suffice).

2.  *But*, where it says "illegal", it's a pity that they didn't use 
some specific term such as "infringing fraud laws".  I, for one, have 
no idea what the laws are that might be infringed by so-called 'deep 
linking'.

Linking is simply linking.  The concept of 'deep' makes no sense to 
me.  And I can't see how it would be illegal, *unless*, for example, 
the person doing the linking is doing so for the purpose of 
defrauding the linkee, or in breach of a term of a contract between 
them.  Even then, it wouldn't be the act of linking that was 
critical, but rather the purpose for which it was done.  Compare 
walking through a shop-door to hold up the sales assistant, rather 
than to inspect the available goods with a view to buying some of 
them).

It's up to the linkee to arrange the 'calculation of the traffic on a 
website' to include accesses to web-pages, irrespective of where they 
come from;  and to set up their contracts for advertising revenue in 
an appropriate manner]

-- 
Roger Clarke              http://www.anu.edu.au/people/Roger.Clarke/
			            
Xamax Consultancy Pty Ltd, 78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                 Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au            http://www.xamax.com.au/

Visiting Professor in the eCommerce Program, University of Hong Kong
Visiting Professor in the Baker Cyberspace Law & Policy Centre,
U.N.S.W
Visiting Fellow in Computer Science, Australian National University
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