Forum - April 2011

LAWREVIEW

The Laws of 'Linking'

This Law Review was written by Lisa A. Stegink and edited by Jed Mandel, both of whom are founding members of Chicago Law Partners LLC. CLP serves as the Association Forum’s general counsel.

Q: Can we prohibit third parties from linking to, or otherwise using, educational materials that we make available on our website?

A: Yes. However, the law of “linking” has been developing since the Internet was first launched, and what is permissible — or at least customary — has evolved over time and is continuing to evolve. While it’s not always clear what is acceptable under a given set of facts, the basic principles of copyright and trademark law apply.

As to copyright law, assuming the association owns all rights in and to the educational materials (because it has created or obtained the rights to them), the association can prevent others from copying and distributing its materials, reproducing or posting copies on a website, and creating new works based on existing works (derivative works). A third party’s copying or creating derivative works from the association’s materials without permission constitutes copyright infringement, and the association has the right to stop it.

Note that a link directly to published material on a website would not, under traditional copyright law principles, give rise to a copyright claim because no “copying” per se is involved. Nevertheless, some courts have given protection to copyright owners that explicitly post notices warning others not to link to their copyrighted material.

As to trademark law, trademark owners
may prevent others from using trade-
marks, tradenames and other marks that
are confusingly similar to the owner’s
marks and thereby may mislead con-
sumers as to the source or origin of the
goods or services sold under the marks.
Federal law also prohibits “deceptive
trade practices.”
As a result, linking (including other
practices such as “framing” — where the
third party frames another’s website — or
“inlining” — whereby the HTML code for

a website is written in a way to “fetch” an image or document from another’s website) is not permissible when the linked-to material misleadingly appears to belong to the third party. For example, a link from a third-party website directly to a document on an association’s website that bypasses the association’s homepage is considered a “deep link.” Some courts have held that “deep linking” constitutes trademark infringement or deceptive trade practices. In other words, users may be misled into believing that the linked material belongs to the third party — since the association’s name and trademark may not be evident on the linked page — or that the association has some connection with the third party, which it does not, in fact, have. In any situation, whether such linking is allowed will depend on the specific facts and circumstances.

In practice, some companies allow
third parties to link to their homepages
without requiring explicit permission.
Because linking to a homepage allows
the user to see that the source of the
educational material is the association,
potential confusion is minimized. Some
associations welcome outside organiza-
tions linking to the association’s materi-
als — even without permission — as a
way to promote their use and raise the
association’s profile. Nevertheless, it
is a good idea to consider establishing
rules or formal linking agreements, and/
or posting explicit prohibitions on link-
ing, to control others’ links to association
websites.

The;answers;provided;here;should;not;be;con-strued;as;legal;advice;or;a;legal;opinion.;Consult;a lawyer;concerning;your;specific;situation;or;legal questions.