August 6, 1999

By CARL S. KAPLAN

Is Linking Always Legal? The Experts Aren't Sure.

ean-Pierre Bazinet, a 20-year-old film buff and financial consultant in Ottawa, would seem to be a movie studio's best friend. He runs a Web site called Movie-List that is a collection of links to over 900 movie trailers scattered across the Internet, making it easier to find what are essentially commercials for films.

But late last month, Bazinet removed the links to all trailers for movies from Universal Pictures. Lawyers from the studio had sent letters and e-mail objecting to his linking to Universal trailers without permission.

"I don't feel like taking them to court over it," Bazinet said. "I don't have the money or the power. A big movie studio is a little threatening."

Unfortunately for Bazinet, the legal status of hyperlinking on the World Wide Web is unsettled, say some cyberspace law experts. Especially controversial is the use of so-called "deep" links, which point directly to Web pages or other content within another site, possibly bypassing advertising-rich home pages or other identifying pages.

Until the courts provide clear guidelines, the experts say, powerful intellectual property owners like movie studios will fill the legal vacuum with their untested assumption that deep linking is illegal.

Linking may be the Web's most distinguishing feature, but the law on linking "is up in the air," said Jeffrey R. Kuester, a lawyer who handles many Internet-related cases at Thomas, Kayden, Horstemeyer & Risley, an Atlanta law firm.

There are no court opinions in the United States that directly address the subject, he said, and even the legal tea leaves are confusing.

Related Article Ticketmaster and Microsoft Settle Linking Dispute (February 15, 1999)

For example, a closely watched hyperlinking case between Microsoft and Ticketmaster Online was settled out of court earlier this year, with Microsoft agreeing not to link from its Sidewalk city guides to pages deep within Ticketmaster's site. But a federal district court judge, in a 1997 opinion striking down an Internet trademark statute in Georgia on First Amendment grounds, suggested in his ruling that the right to link is protected by the Constitution, Kuester said.

Bazinet, who launched Movie-List two years ago while he was in high school, said in an interview that he first heard from Universal about six months ago regarding trailers he was hosting on his server.

The site, which carries advertising, mostly links to movie trailer pages or the clips themselves deep within the Web sites of movie studios, sometimes making the actual source of the trailer unclear. It also links directly to trailers on some popular movie fan sites like Hollywood.com, which has permission from the studios to post trailers. Until recently, Bazinet also sold CD-ROM disks with hundreds of movie trailers.

Early last month a Universal lawyer, Carolyn A. Hampton, sent Bazinet a letter telling him to stop displaying and selling trailers of Universal Pictures' movies on his CD-ROMs and on his site, according to documents provided by Bazinet. Bazinet said he complied, stopping the sale of CD-ROMs altogether and removing from his Movie-List server some copies of Universal trailers that he had downloaded.

In follow-up e-mail messages, however, Hampton demanded that Bazinet also take down his links to all Universal trailers. "[Y]ou are not permitted to link to other sites that contain our copyrighted material without our authorization," the lawyer wrote.

The company hosting the Movie-List site was drawn into the dispute, and it advised him to comply with Universal's demand, Bazinet said. After much back and forth e-mail traffic, Bazinet took down 50 links to Universal trailers in late July.

Last week, the Universal lawyer talked with Bazinet by phone and clarified the studio's position, telling him that he could link to the overall package of information about a film on the Universal Pictures Web site, but not directly to a trailer. Bazinet said he is considering that option for the 30 links he removed earlier, and he has restored about 20 links to Universal trailers on sites other than the Universal's site.

Bazinet maintained that "deep" links are honorable. "Just having a link is basically only telling a user where he can find the trailers," he said. "And the whole basis of the Internet is links. So if you ban links or put restrictions on links, it would change the whole Internet."

Internet links of interest to Cyber Law Journal readers

The Universal lawyer declined to comment on the matter. A spokeswoman for Universal said the key issue for the company was Bazinet's sale of CDs containing the studio's trailers, and "that issue was resolved." With respect to the curbs on linking, the spokeswoman said, "The law is unsettled and for us it ties back to protecting our property in all media."

Bazinet's troubles may not be over. He said that last week, after Wired News wrote about the dispute, he was contacted by a lawyer for another studio who objected to his deep links to that company's trailers. A lawyer for Hollywood.com said that he is also in touch with Bazinet regarding Movie-List's deep links to trailers on its site.

Experts on cyberspace law are split about the legal ins and outs of linking. Some maintain that deep linking is permissible because anyone who creates a Web page, in effect, grants the cyberspace community at large an implied license to link to it.

"I don't think an intellectual property owner should be able to stop" most deep links, said Carl Oppedahl, a cyberlaw expert at Oppedahl & Larson, a law firm in Frisco, Colo. "The eventual goal of the Web is for everything to be linked to everything else. If someone says, 'You can't link to my page,' well, they are missing the point of the Web."

Emily Madoff, an intellectual property lawyer at Wolff Popper in New York, takes the alternative view. She said property owners who create content should have a right to determine how surfers experience their Web sites. In particular, she said, if an owner's home page or another page laden with ads is bypassed by a deep link, then the linked-to Web site owner will soon be out of business.

"If a particular movie studio wants you to see four screens of ads for Coke and popcorn before you get to see a trailer where Nicole Kidman is in her underwear, I think that's right," she said.

Madoff acknowledged that linking curbs could make the Web "a little slower" to navigate and "a little less of a free-for-all," but she said those changes would merely reflect the fact that the Web is becoming a commercial medium.

One New York lawyer with a large high-technology practice advises his clients to ask for permission before deep-linking to another's pages.

"If you [link], you will get a letter from an 800 pound gorilla who will say 'Stop it or I'll sue,'" said Martin Samson, a lawyer with Phillips Nizer Benjamin Krim & Ballon. "No sense in fighting that," given the lack of legal decisions on linking, he said.

CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.

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Related Sites
These sites are not part of The New York Times on the Web, and The Times has no control over their content or availability.

• Movie-List

• Movie-List page on linking controversy

• Universal Pictures Online

• Hollywood.com

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Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.

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