While we all watch the hunting down of net users who have used peer-to-peer software to share sound files, some of us are beginning to ask where the next hit is going to be. My prediction is that companies will start to aggressively pursue internet users who link to their sites without permission.
There has been a worrying increase in organisations which post legal warnings about other sites linking to their site, and an equally worrying increase in law firms and other bodies advising against deep linking.
Currently, there are two types of link you can make: a shallow link and a deep link. A shallow link is a link to a home page, while a deep link is a link to a page below the home page.
Companies are now posting legal notices which restrict linking. There are a number of variants: some ban linking, others ban deep linking, while many ask you to email them to ask permission, usually with a coda that this permission could be rescinded in the future. A good example of the restrictions companies are placing on other sites can be found on the Apple site, where it expressly forbids the use of crawlers, spiders and other automatic means used by search engines to gather information.
The company also forbids deep linking in that you are not allowed to "circumvent the navigational structure or presentation of the site or any content", a euphemistic phrase that effectively disbars deep linking.
The policy is in contrast to the hip, web-centric image the company transmits to the world. What are the reasons? There are probably two.
The first is ignorance. Many lawyers and media staff still do not have any understanding of computer technology, let alone the internet. They, for example, do not realise a hyperlink is effectively a reference to another page in the same sense that a reference in an academic paper is a reference to another paper.
The second reason is commercial. A company that restricts linking to its home page is forcing the visitor to trawl through banner adverts and company information before finding what is required.
In America, the courts have not found that deep links to web pages were either a copyright infringement or a trespass. Similarly, in the UK there have not been any successful explicit prosecutions for deep linking. But a worrying case for British law is the recent case between the bookmakers William Hill and the British Racing Board. William Hill reused data about horse races and the horses entered from it on its web site. William Hill lost the case and judgment was entered against it based on a recent EU directive that concerned database copyright.
On the basis of the William Hill case, legal companies with media specialisations are now warning clients to be wary of deep linking - some advise against doing it at all.
The rationale is that the definition of a database in the 1988 Copyright, Designs and Patents Act covers a web page as materials arranged in a systematic or methodical way that can be accessed using electronic means (for example a browser). Even the UK Association of Online Publishers, which should be in the forefront of fighting for net rights, recommends that if you deep link to another website, you should seek permission.
Clearly, we are seeing a process of creep where legal companies and other advisory bodies are creating a climate where linking in the internet will eventually become a licensed activity. The first victims, as ever, will not be companies but individuals.
However, not all is gloom. Organisations that have attempted to bar all links or deep links to their sites have emerged battered. Last year, National Public Radio, the equivalent of the BBC in the US, demanded that anyone who links to its site has to apply for permission.
There was a furore that led to the NPR ombudsman being inundated by complaints and NPR being submerged by emails asking for deep-linking permission. This resulted in the linking policy being rescinded.
What should you do if you are threatened by a company that disapproves of a deep link? I would advise you to first remove the link, and replace it with some sentence explaining why the link has been removed.
Next, tell the world what has happened: inform bulletin boards and newsgroups associated with the company's products, write to newspapers, post details on websites such as Slashdot. The resulting furore would almost certainly reverse the policy and also, more importantly, eventually help create a climate where we treat ultra-cautious, over-restrictive advice from legal firms and quasi- official trade bodies with the disdain and derision that it rightly deserves.
