On Sun, 10 Dec 2000, John Davidson wrote:

> David,
> 
> I would urge some caution here - I don't think the US courts view the topic
> as simply as Doug suggests. I have not researched the law and don't purport
> to provide any advice, but the following is my off-the-cuff understanding of
> the law.
> 
> The problem with internet and copyright is that going to a web site in
> itself could constitute an infringement because the material is copied to
> the computer's memory, albeit without the user being conscious of this.


Hi John, 

Most of these cases have been settled out of court, leaving
no usable legal precedent. Also they usually involve other
issues making any judgement applicable only to that
particular set of circumstances. 

Re your point on 'copying', merely providing a link to a url
is not copying in any form - electronic or otherwise.

This is a fundamental problem for people who argue this is a
copyright infringment - the act as it stands simple doesn't
support this position. A hyperlink is like giving someone
directions to a library, book shop or art gallery where they
can find a particular work.

There are plenty of lawyers who will endlessly argue these
points on behalf of clients so I'm not suggesting for one
moment anything is open and shut or predicting how anyone
would go in a particular case. 

Most cases however involve various other infringements or
issues like passing off or 'violating terms of use' so you
have to be careful when looking for relevent case history. 

If merely hyperlinking was a  copyright infringement as
suggested then there would be a solid body of precedents
set by now - the fact that there isn't to me suggests that
this is not the case. The plaintifs' obvioulsy have
a difficult and expensive case to prove this.

A recent US case (March 2000) I did dig up support the
commonsense position that: 

"The court stated that such a hyperlink did not constitute
copyright infringement, as Tickets.com did not copy any
portion of the Ticketmaster site, but simply transferred the
user directly to the relevant Ticketmaster page."


Source:
http://www.haledorr.com/publications/internet/2000_06_e_alerts.html#Legality

Short snippets below.

"A recent federal court decision in California (Ticketmaster
Corp. v. Tickets.com, Inc., U.S. District Court, C.D. Cal.,
Mar. 27, 2000) has sided with the commentators and openness,
suggesting that hyperlinking, and so-called "deep linking" 
in particular, may, in fact, be permissible under various
legal theories. 

In its opinion, the court addressed a number of issues
surrounding deep linking.

The court stated that such a hyperlink did not constitute
copyright infringement, as Tickets.com did not copy any
portion of the Ticketmaster site, but simply transferred the
user directly to the relevant Ticketmaster page."


"The court dismissed Ticketmaster's claim that deep linking
violated Ticketmaster's "terms and conditions" of use, which
were posted on its web site. Although these terms and
conditions expressly prohibited deep linking, Ticketmaster
failed to produce evidence that Tickets.com was aware of
these terms. However, the court left the door open to the
argument that such terms and conditions could have been
violated if Ticketmaster had demonstrated that Tickets.com
was aware of them.


The court held that the deep linking itself did not
necessarily involve unfair competition, so long as
Tickets.com did not attempt to mislead users about the
source of the tickets being offered by Ticketmaster. 
This case, though leaving some questions unanswered,
suggests that the practice of hyperlinking is likely to be
viewed favorably by U.S. federal courts."

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