The Internet and the World Wide Web are all about hypertext linking. Linking enables users to obtain information from remote sources almost instantly with the click of a mouse and jump seamlessly from one item of information to the next, outside conventional limitations on time and space. Hypertext linking also may operate beyond an information provider’s ability to control access to and presentation of the provider’s content by unaffiliated third parties. As a result, hypertext linking implicates intellectual property rights in ways that challenge the application of pre-existing intellectual property law.
In Kelly v. Arriba Soft, Corp., 2002 U.S. App. LEXIS 1786 (9th Cir. Feb. 6, 2002), the Ninth Circuit faced an issue of first impression that involved the application of the Copyright Act to hypertext linking to and framing of copyrighted images by a search engine. In holding that the search engine’s display of the plaintiff’s copyrighted images violated the Copyright Act, the Ninth Circuit’s decision in Kelly joined recent decisions that have clarified the application of traditional copyright protections to the digital environment.. In A&M Records, Inc. v. Napster[1]� and MP3.com,[2]� involving digital music downloads, New York Times Co., Inc. v. Tasini,[3]� involving reproduction of print articles in electronic data bases, and Greenberg v. National Geographic Society,[4]� concerning the reuse of print images on a CD-ROM, the courts have provided guideposts that are helping to restore order and certainty to a business and legal environment – the Internet – that has frequently been compared to the “Wild West.”
