Linking to free web content is legal, says EU Court

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

"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

"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.

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.