>Emma Blagg's email asked about the *legal* position on deep-
>linking.  "AFAIKs" and "IMHOs" are fine for a discussion but
>Charles Oppenheim summed up what I think is understood to be
>the legal position.

Yes, to quote from Charles Oppenheim's posting: "Deep linking is
legally dubious, and some court cases (US ones -none in the UK so
far) have found it to be illegal, but others have not. It all very
much depends on the particular circumstances and interpretations of
the law."

ie, if I understand correctly, there isn't effectively any clear
legal position in the UK at present.

I don't differ from Professor Oppenheim except in response to the
situation. I don't see the point in acting in a way which assumes
there is pointless and restrictive legislation (which ignores the
whole point of the medium) in place when there isn't. It's like not
breathing in case someone might bring in a law against it at some
point.

If you read TBL's article as referenced previously you will find that
he advises caution WRT links for the purposes of defamation etc.
Defamation is covered by defamation legislation, it's nothing to do
with linking ("deep" or otherwise) per se.

Ordinary linking which is not for defamatory purposes and doesn't
involve pretending that someone else's content is your own (ie
embedding etc) doesn't imply anything other than a link to a web
resource. As I said previously, if you don't want someone to link to
something, design your site accordingly.

>The Shetland Times dispute, and the Stepstone and Haymarket
>disputes  in December/January showed that there is commercial
>sensitivity about  this.  It seems to me that "commercial" is
>the key word here.   Possibly many companies will not object to -
>for example - academic  institutions deep-linking or possibly
>even embedding content.  Many  of the cases on this subject (in
>the US, Germany, Netherlands etc.)  relate to commercial
>competition.

Hence my remark about corporate lawyers being keen to restrict deep
linking. I don't know enough about the latter cases to comment, but
IIRC the Shetland Times one was about *embedding* their content in a
competitor's pages or frames, not *linking*. Whatever: as I keep
pointing out, if you want to prevent links to certain pages, it's
entirely achieveable. But it's the responsibility of the site
designer: if you don't want it to be linked to, don't put it on the
web or apply appropriate access controls.

>Having said that, cavalier attitudes to what is or is not
>permissible  could lead to a case which could make "bad law",
>which then affects  everybody.

There is nothing cavalier about the stance adopted by TBL, which is
pretty much where I'm coming from. He advocates responsibility WRT
linking, as do I.

>Oppenheim is, therefore, right to encourage everyone to  think
>about what they are linking to and why

I couldn't agree more.

>and certainly
>permission should be sought in some circumstances.

Here I disagree. Putting something on the web without access control
mechanisms in place implies it's there to be linked to. The whole
thing would grind to a halt if everyone sought permission for every
link. If only from the quantity of email generated. If you embed
other people's material in your site (rather than linking) then you
are in a different position. Again, see TBL's article.

BTW he expressly *doesn't* give permission if asked, on the grounds
that you don't need it.

>The increasing availability of sites to use programs to audit
>who is  linking to their sites will be used by many companies
>precisely  because they *are* bothered about deep linking.

Then they are misguided.

The increasing availability of privacy settings within browsers and
in add-on software which enables you to block or replace the referrer
address in the request header (in the latter case usually replacing
it with the address of the page you are requesting) renders such
audits pointless as the information ceases to be meaningful.

TTFN
John Whalley


--
* John Whalley, Crewe Site Library, Manchester Metropolitan University
* email: [log in to unmask]
* Phone: (+44) 161 247 5220 (UK)
* Usual disclaimer applies...........