If your site links to a Web page other than a site's home page, you could be vulnerable to litigation.
Deep linking is when one site establishes a link to a page, other than the home page, of another site. The practice of deep linking has been the subject of numerous court proceedings over the last three or four years.
The problem with deep linking is that it does not assist businesses in generating revenue, if their advertising-generating revenue depends on how many hits the home page receives.
As Web businesses rely more and more on hits, advertising, and revenue, the desire for a free flow of information is directly colliding with the protection of commercial interests. This makes deep linking a contentious issue in the Internet community.
One of the recent cases which examined deep linking is Ticketmaster vs Tickets.com. The decision is currently limited to a response to Ticketmaster's motion for a preliminary injunction, and the issues are yet to be tested at trial, but it still provides some guidance in the area.
Tickets.com was a competitor of Ticketmaster and acted as an online ticket clearing house, linking to other sources for tickets. Tickets.com functioned primarily as an information source on tickets, and also sold tickets for a limited number of events. When Tickets.com was unable to sell tickets directly, it linked users to Ticketmaster's site. It used a disclaimer in prefacing its link, which said, "These tickets are sold by another ticketing company. Although we can't sell them to you, the link above will take you directly to the other company's Web site where you can purchase them."
Consumers were deep linked past Ticketmaster's home page and banner advertising, direct to the ticket purchasing page, thus depriving Ticketmaster of viewers and hits to its home page. Hits translate not only into advertising revenue, but also sales of other services or goods offered through the home page. The consumer also misses out on the opportunity to read the linked site's terms and conditions, which govern their use of the site.
Ticketmaster contended that their pages "represent the relationship that Ticketmaster and Ticketmaster online have built with venues, acts, teams, promoters, and ticket buyers over more than 20 years," and that Tickets.com was "attempting to build one business on the back of another, plain and simple."
Although it may seem commercially unfair that Tickets.com was deep linking into Ticketmaster, the US District Court for the central district of California, was not persuaded to prohibit the practice of deep linking. It dismissed the bulk of Ticketmaster's claims. In part, the judge appears to have relied on the disclaimer that Tickets.com displayed. Further, as Tickets.com deep linked consumers within the Ticketmaster Web site rather than republishing the information in its own format, the judge found "that hyperlinking does not in itself involve a violation of copyright since no copying is involved. Although Tickets.com copies electronic information from Ticketmaster.com, the copying is transitory and temporary and is not used in competition with Ticketmaster.com."
He also said that the factual information on the site (such as the time, place, and venue price of public events) is not protected by copyright even if great care is expended in gathering the information.
Ticketmaster argued that the Terms and Conditions on its home page state anyone going beyond the home page agrees to abide by the conditions. Those conditions include that the information on the site is for personal use only and may not be used for commercial purposes. They also state that deep linking to the site is not permitted. The Ticketmaster site did not, however, require the user to click on a button to "agree" to the terms and conditions, so no contract was entered into.
Although this case has offered some guidance, it is not the end of the issue. I recommend that all Web site owners using deep linking proceed with caution, as the law on the subject is not yet settled. The simple use of a disclaimer of the type used by Tickets.com may not always be effective in defeating claims of unfair competition or trademark infringements.
Andrew Chalet is a Partner at law firm Phillips Fox. He can be contacted on 03 9274 5486 or at andrew.chalet@phillipsfox.com.au. This article was co-written by Georgia Rozenes.
