George Atis is a partner in the Toronto law firm of McMillan Binch and a member of the firm’s KNOWlaw Group.

Just as George was about to explain to Jerry how to pull off the girlfriend-roommate switch in a recent Seinfeld rerun, in the corner of my eye I could see my three-year-old son surfing through a kids website. There he was clicking on images and underlined words that took him back and forth between songs and other activities.

I had watched him do it a dozen times before, but it never really occurred to me that ‘linking’ (also known as ‘hyperlinking’ or ‘hypertext linking’) is the fundamental technology that makes the Internet so user-friendly.

In simple terms, a ‘link’ is usually an underlined word or a particular image (or logo) on a website that allows a user to get to another webpage or website without having to type in the universal resource locator (URL) for that page or site.

And wouldn’t it be great if we could just end the discussion of linking right here – just quietly appreciate it for what it is, use it and go on with our lives. Unfortunately, we can’t. Why not? Because I am a lawyer and I can’t help but think of most things in legal terms and because we have laws that in some way touch everyone and everything – including linking.

Generally acceptable linking: ‘top-level’ linking

The homepage, as everyone knows, is the first page of a company’s (or individual’s) Internet presence. In more concrete terms, www.mcmillanbinch.com is the URL to our law firm’s homepage, just like www.google.com and www.coca-cola.com are the URLs for the homepages of Google Inc. and The Coca-Cola Company.

It would be highly surprising if someone would have to pay a big damage award for providing a link to the ‘homepage’ of a website. (Not impossible, though – everything is possible when it comes to lawsuits and there are exceptions to everything, especially south of the 49th parallel.) There are two arguments to support this view: practical and legal.

Practically, the entire raison d’etre of having a website is for people – Net surfers – to see it. The homepage is the virtual equivalent of a merchant’s front door. Think of it this way. Could you get in trouble for telling someone – or better yet, actually taking that someone – to view Coke’s front door or McMillan Binch’s reception? Probably not. I would say that the same is true where you provide a link to the homepage of someone’s website.

A legal argument for allowing links to homepages is that the owner of a website, by making the homepage available in cyber space, has implicitly made the homepage available for linking.

Generally unacceptable linking: ‘deep’ linking

Deep linking is, basically, linking to a webpage other than a homepage, and is generally unacceptable.

In 1997, there was a high-profile U.S. lawsuit where Ticketmaster sued Microsoft for unauthorized deep links. The case was settled before the court could render final judgement because Microsoft backed off the deep links and linked only to Ticketmaster’s homepage.

The issue that most website owners will have with deep linking is that it means surfers might bypass messages or advertising intended for those surfers.

For example, if you go directly into a specific webpage of a site that does not display the ‘Terms of Use Policy’ or ‘Legal Disclaimer’ or any advertising banners, you may be defeating many purposes of that website.

Potential legal trouble

How can you get in trouble with linking? Remember what I said about how the law touches everything yada yada yada…Well, here are three ways.

1. Contributory liability:

Linking to sites that may infringe a third party’s intellectual property or worse, may contain defamatory content or perhaps illegal images can get you into trouble. The legal basis for contributory liability is that the supplier of the link is complicit in the infringement or illegal activity.

Consider, for example, the potential for massive legal problems if you provide a link to a site that contains hate propaganda or child pornography. Context may be everything in this case: are you linking to the impugned site to criticize it (which may beg the question of why you need a link to do so) or are you endorsing it and facilitating the dissemination of its contents?

Just how much water can the theory of contributory liability hold in terms of linking? I think the better question is: Do you really want to be part of a legal test-case?

2. Copyright infringement:

In simple terms, copyright seeks to protect a work (e.g. a book, an article, a song, a live play) created by an author from unauthorized copying, distribution and performance. In the linking context, how can a link ever be construed as ‘copying,’ ‘distribution’ or ‘performance?’

Starting with the easiest aspect, it is highly improbable that a link could be construed to be a ‘performance’ of a work.

The other two aspects of copyright law are not so clear cut.

First, since a link is merely an electronic reference to a place where information is stored, the provider of the link is not ‘copying’ anything. But, is the user who activates the link copying the information in order to view it? Without getting too technical, by clicking on the link, the user may be ‘pulling’ the information into a computer’s memory, that is, temporarily copying it, while the user reads or views the work. Is this enough for a violation of copyright law? If the copying doesn’t come within an exception under copyright law, it could be. Could the copyright owner show damages? Maybe.

Second, ‘distribution’ under a copyright law analysis is not purely intuitive. For example, assuming there is knowledge of an owner’s copyright, facilitating distribution of a copyrighted work may attract liability. And, it is not a stretch to view the provision of a link as the facilitating act.

3. Trademark infringement:

Trademark law seeks to protect the investment made by someone in a brand (i.e. a mark) from dilution, confusion or passing off by another.

The most definitive thing that one can say about linking and trademark infringement is that the law is unsettled. The issue is how far can a trademark analysis be pushed in terms of linking?

Can you link to your competitor’s website? Is this unfair competition or is it a mere reference like a footnote in a published paper? When does a link dilute a trademark? When does a link create confusion about a trademark?

The legal answers to these questions are highly fact-specific, so if you intend on providing a link that touches on someone else’s trademark, get some advice beforehand.

Three rules for website owners

1. Use linking agreements where possible.

A linking agreement removes all doubt about how you can get on the wrong side of a link.

If you’re a business and want to provide a link to another website, you should definitely err on the side of caution by having some sort of understanding with the owner of the other website. Although a formal agreement is preferable, even an e-mail exchange with someone with manager-level authority will be better than nothing at all.

2. Audit your website for potential linking issues.

You should have your webmaster surf through your website for links and provide a report.

If there are links to websites that are notorious for infringing or facilitating the infringement of intellectual property, deep links or any links associated with editorial comments about a company or person, you may want to have your in-house or external lawyers take a second look.

3. Consider taking action for undesirable linking to your website.

If you learn of an unauthorized and undesirable link to your homepage or a deep link to a webpage, you should analyze the situation and consider what action, if any, you should take.

In this context, you may wish to bear in mind that once you have knowledge of a particular link, inaction on your part may be later construed as a waiver of your rights vis-a-vis the person or company that established that link.

Observations and conclusions

Today, the use of linking is so second nature that many readers may think that this article is just a lot of lawyer ‘yada yada yada’ talk. But, in the increasingly ubiquitous e-commerce world, companies with large enough legal budgets may seek to take action to preserve market share or perceived competitive advantages.

(For example, BT Group, the British telecommunications giant, believes it invented hyperlinking and has launched a lawsuit as a ‘test case’ against a U.S.-based Internet service provider, claiming millions of dollars in back royalties. If successful, BT plans to pursue a larger legal attack against all other major U.S.-based ISPs.)

Until the law gets more settled, your best course of action is to get specific legal advice on any linking you want to do.

As Seinfeld came back from commercial, I continued to watch my three-year old surf through his kids website and my legally inclined mind conjured up an image of a BT process-server handing him a statement of claim (i.e. a lawsuit) for back royalties for all of his use of linking technology since his second birthday. Luckily, George’s distinctive voice (as he began to explain the cockamamie ‘switch’ scheme to Jerry) broke up my mental image before my son could accept service.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)