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'Stupid' linking policies come under fire

By Paul Festa, GameSpot Europe, 21 August, 2002 14:33

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Internet, hyperlink, deep linking, don't link to us, sorkin

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Want David Sorkin to link to your Web site? Just ask him not to. Sorkin, associate professor of law at The John Marshall Law School in Chicago, Ill., is the man behind Don't Link to Us, a Web site that exists merely to flout what it terms "stupid linking policies." Sorkin's site was launched in reaction to recent legal decisions in which courts upheld Web site terms and conditions that prohibited or restricted links. "I created my Dontlink.com site in part as a reaction to Newsbooster and similar cases," Sorkin wrote in an email interview. "But I've really focused more on sites that don't seem to have any plausible reason for wanting to restrict links -- in other words, that are doing so out of mere ignorance." In last month's Newsbooster case, a Danish court ruled that the Newsbooster Web site could not link to stories within 28 associated Danish news sites. Once Sorkin started looking more closely at the Web's various link restrictions, he said he was surprised to find not merely curbs on so-called deep links (to pages beyond a site's home page) or links to pages that incorporated a trademark, but outright bans on linking to a site altogether. Courts worldwide have grappled with the issue of whether a site can prohibit links to its pages, and the issue is nearly as old as the mainstream commercial Web itself. In addition to the Danish court decision, the Scottish courts grappled with the issue in 1997, though that case was settled out of court. In the United States, link-busting litigants have included Hollywood and Ticketmaster. Sites with linking bans Sorkin has flouted include The International Trademark Association, The American Cancer Society, The City of Colorado Springs, Gay Wired, Texas Instruments, Shell Oil, The Washington Post, Disney, Motorola, The Chicago Sun Times, the Chicago Tribune, National Public Radio, Carfax, Matsushita, Autodesk, the Smithsonian Institution's Hirshhorn Museum and Sculpture Garden, Michigan.gov and Law.com. A lawyer for Law.com expressed surprise not only that Law.com had been featured on Dontlink.com but also that the site had an anti-linking policy to begin with. "I didn't even realise we were doing such a horrible thing," said Allison Hoffman, vice president and general counsel for American Lawyer Media, which acquired Law.com in May. "It's something we'll be reconsidering, because we're going to be redoing both our terms and conditions and our privacy policy (because of the acquisition)." While Hoffman characterised Law.com's linking policy as an old chestnut, she did spell out the rationale for companies like hers for similar rules. Indeed, many of Dontlink.com's targets, and several of the high-profile linking litigants, are also media companies. One reason media companies might want to restrict links, especially deep links, is if they license content from third parties such as the Associated Press and Reuters. Those content providers could claim that unrestricted links to licensed content amounted to unlicensed distribution, Hoffman argued. Another reason Hoffman cited was that deep links made it more difficult -- though not impossible -- for sites to protect paid, password-protected content. Other sites, such as the American Cancer Society, say restrictions on deep linking are in the best interests of people seeking information. "Our policy is nothing out of the ordinary," American Cancer Society spokesman David Sampson said. "We like people to go through the main page so they find out about the right cancer, and they see the broad range of information we have here. Our aim is to support people as advocates, lead them to support groups, which if people go to a page on a new medicine, they don't see." Sampson said his organisation had no plans to prosecute Dontlink.com for violating its linking policy, or anyone else for that matter. "We don't go after people who violate our terms of service," Sampson said. "The point is to make the Web site as useful as possible." Linking advocates ground their arguments in broader, more philosophical terms. Some claim that unrestricted hyperlinking is a right inherent in the nature of the Web, which is fundamentally a protocol for linking one page to another. "Although these policies often seem pretty funny, court cases like Newsbooster -- and Ticketmaster, Shetland Times, TotalNews, etc. -- show that we ought to take this issue seriously as a threat to the very foundation of the Web," Sorkin wrote.
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