The hyperlink comes with an implicit promise. Anybody can link to anything. You can link to any webpage that exists. You can link to any webpage that no longer exists. You can link to nothing. That has its downsides, but it’s what enabled the web to so quickly become globally distributed.
So a link can link to anything. But what a link can link to legally, what’s sometimes known as a “right to link,” is more challenging to define.
In June of 1996, Glen Roberts published a website with disturbing and potentially harmful content. Naming it The Stalker’s Homepage, Roberts filled his website with details about how to access phone numbers and addresses of others using publicly available online phone directories.
Roberts insisted that the site wasn’t intended to be harmful, that it was created to protest the ease of access of private information on the web, highlighting just how simple it was to exploit these services. The phone directory’s parent company, Banyan, got their lawyers involved. They sent a letter to Roberts’ ISP, demanding that he take down the website, or remove the link to their service. Roberts called the move an affront to the openness of the web, an action that if carried out, would have disastrous consequences for years to come. The two settled the matter out of court, and Robert’s site stayed up.
The is one of the ways the freedom of the decentralized web—a right to link to anything—bumps up against serious questions about the ethical efficacy of content. And so, on occasion, you will see legal disputes around the ethics of hyperlinks.
Then, of course, there are times when there is money involved.
One early case about the right to link originated in the most remote of locations, a small archipelago off the coast of Scotland known as Shetland. A popular cruise destination, the local population stands at just north of 20,000 people. Its local paper, The Shetland Times, dates back to the late 19th century. And yet despite its relatively limited circulation and longstanding roots in print tradition, The Shetland Times was an early adopter of the web, launching a test version of its site as early as March of 1996. The site featured most of the articles that could be found in print. Advertising was contained to the homepage, to avoid unnecessary distractions to the reading experience on individual pages (a sentiment that would feel welcome on the modern web).
It was around that time that a former editor of the Times left the publication to help create the newspaper’s first digital competition, an exclusively online site known, somewhat confusingly, as The Shetland News. Shetland News would share its own articles and content, but would often link directly to articles on The Shetland Times website, bypassing the front-page entirely—and the advertising that came with it. This is standard practice these days, but at the time, this was referred to as “deep-linking,” and it was the source of several legal battles.
The Times and the News made it to court, with the former arguing that the latter, by bypassing their source of income, was infringing on the paper’s copyright. The News contended that mere headlines and links were not protected by copyright. The court agreed with the Times version of events in an initial finding, but the matter was eventually settled out of court, The Shetland News agreeing to link only to the site’s front page, with proper attribution.
A number of subsequent cases regarding deep linking continued. The highest profile case came in 1997 when Microsoft, in a series of online city guides they created in the wake of their sudden rush to the web, deep linked to individual event sales on Ticketmaster’s website. One could, potentially, argue that this arrangement was best for everyone. Users went right to the listing they wanted and Ticketmaster still got a cut of the sale. But Ticketmaster insisted that, like The Shetland Times, Microsoft was bypassing their front-page advertising and profiting directly from their content. The case lasted years, until 1999 when Microsoft agreed to stop their deep linking practice.
Deep linking became such a hotly debated issue, that publishers began to try to find ways to profit from it directly. Nando.net is a fascinating early web publisher, transforming a regional Raleigh newspaper into a digital community hub and full-on Internet Service Provider (and this was back in the mid-90’s). They added local and national news to their site several times a day. As a result, they were the source of a lot of deep links.
They began charging other publishers $50 for the right to link to their site, a move that was not well received by the larger web publishing community. Years later, companies like iCopyright would turn that into a service for publishers, attempting to charge other websites for that same right. The legal justification was shaky at best. Some websites agreed to the price, but most simply ignored it.
Things died down for a while.
Then, in 1998, the Digital Millennium Copyright Act passed. The controversial law protects copyrighted works from technologies that aim to circumvent DRM protections. The law is notoriously broad in its scope, and has led to a number of high profile court cases.
The digital protections on DVDs, however, was a major problem for Linux users. Being lesser known, and developed in public, Linux didn’t have a way to access DVDs protected by a DRM technology known at the time as the Content Scramble System, or CSS. In 1999, the software DeCSS began to circulate. It let Linux users (or anyone) override DVD protections and watch video without restrictions.
DeCSS became a target among DVD control groups and the Motion Picture Association of America, the latter of which has been known to actively pursue DMCA related litigation. The only known co-creator of DeCSS, Jon Johansen, was hauled from his home and had his computer confiscated in his home country of Norway in 2000. Two years later, he was indicted on charges of anti-circumvention. At the time of his indictment, he was 18 years old. These charges, and others brought against Johansen, were later dropped.
Online hacker magazine 2600 found themselves embroiled in another battle over the right to link around the time Johansen was being pulled from his home. 2600 had posted a link to the DeCSS software on their website, following a feature in the magazine on it.
In January of 2000, eight motion picture studios sued the magazine and its editor, Eric Corely. They cited a section of the DMCA that specifically makes it illegal to even distribute anti-circumvention technologies. 2600 argued that the purpose of DeCSS was perfectly legal, as Linux users had no other alternative. And besides, the software was out there, 2600 was merely one more way to access it.
A multi-year battle in and out of court followed . Throughout, 2600 found clever ways to uphold their right to link. When a court ordered injunction forced them to take their own link down, they opened up a form on their website for their readers to submit links to other websites that then linked to DeCSS. When a subsequent injunction forced those links down, they converted their hyperlinks to text, and suggested people simply “go to Disney’s search engine and search for DeCSS. They will then LINK you to thousands of sites, something we’re no longer allowed to do.”
The games, however, came to an end a couple of years later. Ultimately, the right to link in this specific case failed. Both initial findings and subsequent appeals in court found it illegal for 2600 to link to DeCSS, and they were forced to take the links down permanently. It would not be the only site to suffer the same fate.
Over the years, lingering questions have remained. DMCA, for instance, is used in a sort of automatic roundtable of link removal throughout the Internet, the practice of DMCA takedown notices reduced to an art form that most popular platforms are forced to participate in. Other questions also remain.
For instance, if you embed a post form social media, and that post has an image in it, are you violating the copyright holder of the person who took that image (
Goldman v. Breitbart,). If you link to a set of images in your image search, without linking direclty to downloadable images, is that an example of fair use? (Perfect 10, Inc. v. Google, Inc.). If you link to a person, and defame or slander them in the process, is that actionable under defamation?
And of course, more recent news out of Australia is at least in part about whether or not major platforms—notably Google and Facebook—have the right to link to news publishers without compensation. The answer to this question is not always straightforward. It may never truly be solved