Re: Arrested - re: TAG ISSUE-25 deep linking

* ashok malhotra wrote:
>If I have a large, boldface banner on my website that says "Do Not Link to this Website" then I assume
>that it can be argued that linking to the website constitutes infringement as long as I saw the banner
>before I linked.  Can I argue that my website is my "property" in the legal sense and so I can regulate
>its use?

By making your website "linkable" you've already "regulated", so what
you would be asking for is granularity, ill-specified granularity in
your example (it does not specify for instance whether an entry in my
DNS cache is a link, or whether an entry in your registrar's zone is
a link). You could add further detail, like "don't link to this site
when saying bad things about it", "between 22pm and 6am", "if you are
of caucasian descent" and so on. It would seem clear that you are not
free to "publish" but then impose arbitrary restrictions on anyone who
may encounter what you've published simply based on them encountering
it.

Assuming linking your website would involve the DNS you are in Rumpel-
stiltskin territory here, linking your website is a matter of telling
others your (website's) name. That is one part of the problem, there
is essentially nothing you can do on a technical level to prevent any-
one from telling your website's name to others. This is very different
compared to the "deep linking" scenario where you are quite able to
use technical measures to prevent others from linking. Since you need
to pretty much put your name into public directories for your website
to be reachable for anyone you don't closely coordinate with, there is
not much room for an expecation on your part that your name does not
become known to a wide audience.

And beyond that you can employ measures to ensure that deeper links 
fail all or almost all the time if you did not approve those links. If
you elect to not use them, then you have little cause to complain about
others not abiding by some notice you've put up in some place at some
point or another.

On the other hand, it'd seem clear that some links are inappropriate,
like links meant to associate with something you do not approve of. It
would seem obvious that you should be able to regulate those to some
extent. If you set up millions of web sites suggesting I might support
"Pluto is a Planet" while I strongly feel Pluto is just a Transmartian
Object, and Google give my poor ranking because of all the spam, while
I get dozens of complaints from Transmartianists, there should be some
way for me to make you stop setting such inappropriate links. And to
get back to the beginning, you should not be able to involve me in a
lawsuit about me "linking" your "Pluto-Planetist" web site in an e-mail
to my lawyer complaining about your inappropriate linking.

Either way however I don't really see how plain "linking" without any
context, whether you include such a notice or whether I have seen it,
would allow a court to decide whether my linking, or your linking, was
inappropriate, so I don't think your question is particularily valid.

There is no "using" your website by placing a link; it would seem you'd
need to show that someone linking your website is inappropriately harm-
ing you or your website or associated business or whatever to an extent
that should put you into a position to put restrictions on others. And
that would be a long way from you putting a general notice on your site.
-- 
Björn Höhrmann · mailto:bjoern@hoehrmann.de · http://bjoern.hoehrmann.de
Am Badedeich 7 · Telefon: +49(0)160/4415681 · http://www.bjoernsworld.de
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Received on Thursday, 10 March 2011 02:09:46 UTC