The Potential Liability of Linking on the Internet: An Examination of Possible Legal Solutions

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I. INTRODUCTION

At the end of 1997, 40 million people were using the Internet;l by 1999 that number is expected to grow to 200 million.2 With this increasing popularity of the Internet, and the World Wide Web in particular, users are encountering old legal issues in entirely new contexts. Formerly established legal rules must be reconsidered in light of the new technological opportunities available to computer users.3 One issue that is just being raised is the protection of intellectual property on the Internet. Because Congress is not prescient, its past attempts at statutorily protecting intellectual property did not anticipate the technological possibilities of the Internet. It was therefore impossible to sufficiently guard against misappropriation of the proprietary work of others in an entirely new medium.

One of the basic functions of the World Wide Web is the linking function which allows a user to instantaneously "jump" from one site to another with the click of a button. Web site owners have many concerns about posting information on the Internet and having it "linked to" by other sites. One set of concerns involves any association between the two linked sites that may be created in the minds of the viewers. If the viewer associates the two sites, the concern is that the passively linked site may become liable for factual misstatements or defamatory statements made by the linking site. Moreover, when a viewer assumes two sites are associated, that association may damage the reputation of the linked-to site. For example, if a site displaying pornography contains links to sites of merchandisers and organizations (with which it is unassociated), the reputations of the linked sites may suffer because of the implied association. Site owners may have no knowledge of, and have no control over the sites that link to their sites.4

Additionally, web site owners have a strong interest in preserving their own advertising. Framed links that obscure the original advertising on a linked page and deep hyperlinks that bypass a site's advertising may infringe on this ownership interest and cause a loss of advertising revenue. One commentator has stated that control over how visitors enter and move through a site is critical to a company's ability to maximize sales and profits because of the power to ensure that all visitors view its advertising.5

A final concern is raised by the possible misuse of proprietary information that is posted on the Internet. If publishers feel that copyrighted and trademarked material is not adequately protected from misuse, they will be reluctant to post such information on the Web. This could result in an overall decrease in useful information on the Web and would be detrimental to the vitality of the Internet.

This Comment will discuss legal actions that are threatening the use of links on the Web. Part II will give a history and explain the workings of the Internet. Part III will outline the technological workings of the three possible types of links and explain how they may infringe on proprietary rights, using real conflicts as examples. Part IV will then discuss the primary causes of action as they may apply to these cases, along with some benefits and drawbacks of these theories of liability. Part V will emphasize the policy considerations of applying law to the Internet and note technical as well as statutory solutions to linking conflicts on the Web. Finally, Part VI concludes that the Internet itself should generally define the scope of Internet law, and that its development should not be restricted by premature legal constraints.

II. HISTORY OF THE INTERNET & WORLD WIDE WEB

A. The Origin of the Internet

The Internet originated in 1969 as an experimental tool to link government and industrial computers in the defense field.6 It enables computers separated by great distances to communicate by receiving and transmitting data over telephone lines. …