Academic journal article Texas Law Review

Database Protection V. Deep Linking*

Academic journal article Texas Law Review

Database Protection V. Deep Linking*

Article excerpt

I. Introduction

The long battle between the deep linkers and their foes appears to be drawing to a close. Deep linking is the practice of creating a link to a web page that the owner of the targeted web page does not define as the proper page from which users should begin accessing the website. Opponents of deep linking have argued that deep linking is theft because visitors arriving via a deep link see only a single page on what might be a much larger website.1 After numerous initial skirmishes, the cases have held that deep linking generally is a legal, acceptable practice on the Web.2 Deep linking proponents have convinced the courts that deep linking is a legal and beneficial online practice that benefits both the website hosting the deep link and the target website.3

The issue of deep linking is an important one because linking is central to the operation and usefulness of the Web.4 Web search engines, online auctions, and newspapers all make use of links to connect with their customers and to connect their customers to other data. In turn, consumers benefit from the proliferation of links on the Web because they are able to follow those links and locate data they seek. If the "right to link" becomes too restricted, consumers may receive information compromised by large holes or, worse, no information at all.5

Database-protection legislation has the potential to upset current linking law and create liability for deep linking. As a string of recent European cases demonstrates, database-protection legislation creates a substantial risk of liability for websites engaged in deep linking on the Internet.6 For the last several sessions, the United States Congress has considered implementing database-protection regimes similar to the one used in Europe. The Collections of Information Antipiracy Act7 (House Bill 354) and the Consumer and Investor Access to Information Act of 19998 (House Bill 1858), two recent database-protection proposals, received serious consideration in Congress. While neither was enacted into law,9 the interests favoring database-protection are still hard at work attempting to pass similar legislation.10 Little commentary has focused upon what effects a database-protection regime might have on linking law in the United States.

Consider search engines. A search engine like Google produces a web page in response to each search request. That web page comprises numerous links to pages in other websites. If Google were held liable for making those links available to Internet users, Google will excise links it feared would subject it to liability. Restricting the power of search engines to return any relevant results has serious public implications because "[a]t the risk of waxing Orwellian, how we search affects what we find and by extension how we learn and what we know."11

Part II of this Note explains deep linking and current law regarding liability for linking. Part III argues that House Bill 354 would have created liability for deep linking, while House Bill 1858 would have been less likely to create such liability. Part IV argues that outlawing deep linking is an unacceptable outcome of any database-protection regime. Finally, Part V concludes that Congress should draft specific exemptions to any database-protection legislation so as to preclude liability for deep linking.

II. The Law Today

A. Deep Links Defined

An Internet link is a piece of information that can be embedded into the HyperText Markup Language (HTML) code comprising a document.12 There are numerous kinds of links,13 but as used in this Note, only the so-called "normal" links are important. A normal link connects one hypertext document with another document.14 Conceptually, a link is comprised of three parts: a source anchor, a destination anchor, and a direction.15 The document containing the link is the link's source anchor ("source page");16 the link targets or points the user to the destination anchor ("target page"). …

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