Web Linking

Q.  I have an author web site, and link to many other author and publisher sites. In the past you’ve said there may be liability for this.  Is this still true?

A.  As a general rule, you are not liable for linking to other sites. Obviously, without linking, there would be no World Wide Web.  But as with all general rules, there are exceptions.

Copyright infringement claims can be made when a site encourages its users to link to another site and obtain copies of copyrighted material.  Trademark infringement claims can arise when the link includes a logo or other trademark material, usually as a result of “framing” the linked-to site.  Claims for circumvention of technology under the Digital Millennium Copyright Act (DMCA) have arisen from “deep linking” – linking not just to the home page of a site but to deep content.  Why does this matter?  Advertising.  The owner of the linked-to content site loses advertising income if a user doesn’t have to navigate from the home page to a particular site.

Linking also may lead to claims of unfair competition and false advertising, and give rise to liability under the Lanham Act and state unfair competition laws.

The good news is that few of these lawsuits have been successful; on the other hand,  it often isn’t necessary to win in court in order to claim victory.  Companies with deep resources and large legal budgets can intimidate small web sites.  So here are some guidelines to prevent trouble:

— You should not use a third party’s logos, product designs, slogans or trademarks as the “click” word or image to their Web page since this could lead viewers of your site to believe that the site you’re linking to endorses or is affiliated with your site.

–If possible, don’t describe the Web sites to which you provide links. This will prevent the owner of the linked page from alleging that your description of the linked age was inaccurate or misleading.  In general, links to third party sites should be as simple as possible.

— It also is better to link to a site’s home page rather than the internal page, because linking to an internal page has been the subject of lawsuits on two issues: bypassing advertising and the Web site’s “policies and terms and conditions” governing usage of the Web site that are often require a click-through on the home page.  As noted above, the advertising issue is primary – many sites, even small ones, have ad revenue on the number of hits to the home page.

— If you do link to an internal page – and it is being used often — you should consider contacting the owner of the linked page before initiating such link and obtaining permission from the owner of the linked page to link to an internal page and not the home page.  You also might, consider the option of entering into linking agreements. Generally, there are three types of linking agreements: mutual linking agreements, one-way linking agreements, and cross-linking or “co-branding”  agreements.  Mutual linking agreements are based on good will, and their purpose is often promotional or informational. Usually, revenues are not generated from such agreements.

— In the case where YOUR Web site will be the linked page you may want to establish guidelines that specifically address the issues of (1) the use of your logos, designs, slogans or trademarks, (2) links to internal pages, (3) under what circumstances you will not permit links to your Web site, and (4) under what circumstances your permission is required before linking to your Web site.

©2018 Daniel Steven