[Air-l] FW: Deep Linking

[Jennifer Stromer-Galley]

I thought I'd forward this to the list. Some good additional information on
deep linking and legal issues.

~Jenny

-----Original Message-----
From: Dan L Burk [mailto:burkx006 at tc.umn.edu]
Sent: Friday, February 15, 2002 5:22 PM
To: jstromer at asc.upenn.edu
Subject: Deep Linking


Hi Jennifer --

I just noted your query about so-called "deep linking" on the air-l
archive (I am not currently subscribed to the list).  There have been
several cases dealing either with unauthorized links, or with in-line
framing, which raises the same set of issues -- not only Ticketmaster,but
Futuredontics, Shetland Times, Utah Lighthouse Ministries, even the DeCSS
Corley case.  Most of the cases have settled, but a few have produced
published opinions, including one just last week.

You are entirely correct that unauthorized linking *should* not be
considered copyright infringement.  In some cases, where there may be
consumer confusion, there might be trademark or unfair competition
problems, but not copyright.  I set out that analysis some time ago at
http://elj.warwick.ac.uk/jilt/intprop/98_2burk/

Another helpful paper reaching the same conclusion, by Ed Cavazos and Coe
F. Miles, can be found at http://www.richmond.edu/~jolt/v4i2/cavazos.html

Despite the fairly clear logic against a finding of copyright liability,
some courts have been sympathetic to these claims.  This has been a source
of ongoing controversy.

Data aggregators, such as the crawler in the eBay case that was mentioned
to you, raise several of the same issues.  

And, I assure you, there are people looking for ways to sue Tevo for
copyright infringement for allowing viewers to skip television commercials
(I have had the misfortune to meet some of them -- the potential
litigants, that is, not the viewers).

Please feel free to forward this to the list if you like.

Regards, 

Dan L. Burk
Julius E. Davis Professor of Law
University of Minnesota