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

[Chirgwin, Richard]

Cutting the debate in a completely different direction...

...I think we are seeing, in attempts to control deep linking, a fundamental
"impedance mismatch" between what the Web was designed to do, and what a
commercial organisation wants it to do.

The architects of the Web saw it as a means by which you could efficiently
disseminate information over an electronic network. Linking is more
efficient than making someone read entire documents to find a reference or
citation.

The commercial Web operation sees it as only and completely a means by which
you can reach "eyeballs". 

Linking is absolutely fundamental to the Web; but it also works against the
culture of control. You can only extract maximum value from the 'eyeballs'
if you can exercise control over them - the industry jargon is experience
management. People spend buckets on this (with, IMO, the flakiest evidence
that it's actually worth the effort!); Amazon is still held out as the most
frequent example put in front of the media, even though it still looks like
it will return its original investment in about the 24th century!

By controlling linking, a commercial operation harms itself (for example,
because Google ranks pages partly according to link 'popularity'). But the
urge to control is irresistible. 

The disconnect exists. It didn't go away just because people keen on
e-commerce decided to try and invent tech fixes; or threaten legal ones...

Richard Chirgwin

> -----Original Message-----
> From: Roger Clarke [mailto:Roger.Clarke at xamax.com.au]
> Sent: Monday, 31 March 2003 15:28
> To: link at anu.edu.au
> Subject: [LINK] Legality of Linking, incl. 'Deep Linking'
> 
> 
> 
> At a (hopelessly over-designed) EU site at:
> http://www.ipr-helpdesk.org/controlador.jsp?cuerpo=principal&s
> eccion=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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