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Deep linking could pose legal problems as they become more common on the Internet. The problem is that deep linking connects one Web site to another, bypassing its “home page” — and therefore a sites’s main area of advertising — and taking the user straight to a specific page within another Web site. There are two possible causes of action in deep linking cases, says Dawn Osborne, partner at London IP firm Willoughby & Partners. “There is the passing off angle where the courts will take a view of whether and how people may be confused. Decisions will hinge on the way the site is navigated and the impression the user has when the page is reached.” “There can also be a copyright claim if there has been actual reproduction.” Osborne goes on to explain that deep linking can be done either by linking out, which would not involve copying, or by pulling content from the target site onto your own frame to create a link. She says: “It should be possible to tell from the URLs (Web site addresses) whether the case is one of reproduction and, if so, there will be breach of copyright unless fair use can be established.” There has only been a smattering of court decisions in this area and there is some inconsistency between countries. Osborne refers to the Dutch case where PCM, one of the largest national newspaper groups, recently failed to obtain an injunction against Web site, Kranten.com. Kranten consisted mainly of news headlines that linked directly to PCM stories bypassing the papers’ homepages which contained their branding and advertising. Osborne says: “This case must be treated very carefully. It hinged on a quirk of Dutch copyright law that allows reproduction.” “Apparently, once content is in the public domain, reproduction and dissemination is not unlawful.” This is probably a “fair use” policy decision peculiar to Dutch law and should be treated with care elsewhere, she stresses. COURTS Simon Harper is a solicitor in the competition, media & IP department of Paisner & Co. He thinks that UK courts should take a commercial view. “The nature of the worldwide web is that it is a web of information and that without links it would not be a web.” “If there is just a pure text link to a home page, literally just the URL, it is very difficult to see why anyone would be upset. There is no copying and no loss.” Like Osborne, he believes rulings will depend on the individual facts of each case. “The more complex the link, the increased likelihood of infringement between the parties,” he says. It is possible to prevent deep linking technologically and this was referred to in Microsoft’s case against Tickets.com a few years ago. Struan Robertson, IP specialist at international law firm Masons, thinks the UK courts will not be asked to intervene in deep linking cases. “There is a good argument against deep linking because it bypasses the shop-front of a site and most lawyers would advise not to deep link without permission,” he says. “On the other hand, most people are quite happy to have a deep link to their site rather than no link at all.” This practical approach is endorsed by Kendra Strauss, who is a senior accounts manager with Realise, a Web site and e-commerce consultancy. She says: “There would possibly be ways of preventing deep linking but this would be difficult to do without affecting the links on your own site.” “This is because static sites that use html use the same reference tags and language to link to pages within their own sites as to link to third party sites.” In Strauss’ experience, companies get around this issue using a code of conduct that requires all third-party links to be opened in a new window unless otherwise negotiated. She explains: “The link is opened in a separate window effectively sitting in front of your Web site rather than in your own frame so that you are not giving the impression that the content is your own.”

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