Germany’s highest court, the Bundesgerichtshof, has ruled that the practice of “deep linking” is not illegal. The ruling, which was passed down on July 17th, was over a case in which Verlagsgruppe Handelsblatt, the German newspaper company, had brought suit against Paperboy, a news search engine, for unauthorized deep linking to their articles.
Plumbing the Depths
For those unfamiliar with the term, “Deep Linking” refers to the practice of linking directly to the content you wish to, rather than to the host site’s index or “home” page. The controversy is not without merits on both sides, since content publishers wish to focus traffic on their all-important (and sponsor-laden) entry pages, and not some back-alley page lacking in prime revenue generating capability.
Beyond the main economic concerns, changing infrastructure and directory trees can lead to excessive “document not found” (404) errors, and force publishers to make the choice of either the ongoing chore of providing updated document pointers, etc. or of having users who are unable to find the content they seek - potentially leaving them with a lowered opinion of the publisher, plus the reduction in traffic (and subsequently, income) that often comes as a result.
Both of these problems, as well as a few more, can easily be mitigated by limiting access to a designated “front door” where an up to date “Articles” link could be found (along with some lucrative advertising).
Deep linking proponents, however, assert that what they are doing is merely providing the most direct access to the content possible, streamlining Net overhead while improving the end-user experience. Many also point out the ease of preventing deep linking through technical means (using .htaccess files on *nix server systems, being an example of a simple deep linking prevention method). Another factor that proponents recognize is the additional traffic that goes to the linked resource from the directories that index them, and the revenue generated by the publisher from this abundant ‘free’ traffic.
The German View
The plaintiff, Verlagsgruppe Handelsblatt, makes individual articles for which it owns the copyright publicly accessible from their Websites over the Internet. It was their opinion that Paperboy's inclusion of their site’s materials into its search listings violated their copyright, and constituted adverse competition.
Paperboy's position that the plaintiff's work was not unfairly exploited, and that their news search service offers a substantial benefit to the public by providing a multiplicity of sources of information - including news articles whose source is not hidden, but which a lawful public access to is merely facilitated, was upheld by the court.
Attempting to prevent a climate in which “…the possibilities of the hyperlink technology remained unused,” the Bundesgerichtshof ruling declared that maintaining the public interest in a well-working Internet should take precedence over a newspaper company‘s commercial interests - regardless of whether the publisher’s advertising is bypassed or not.
Stating that if someone uses the Internet to promote their offers, then they must also accept its restrictions, which result from the common interest in the operability of the Internet, including the fact that users can access any resource directly by typing the URL for it, and that a site’s use of deep linking is but a simplified alternative for entering the URL manually.
Here in the states, a lot of litigation and legislation is being evolved over the issue of deep linking, and the results can affect nearly all of us. While the German case involved news articles, consider the American case which involved thumbnail images displayed as part of search results that linked to the full-size image, rather than to the site’s homepage. The 9th Circuit Court of Appeals has ruled this fair use under copyright law.
If that is fair use, then would a search engine that listed accessible jpegs on your gallery pages and then displayed thumbnails for each, so that surfers could go straight to the image without ever seeing any of YOUR ads, but the search engine’s ads, be fair to YOU? Have an opinion? Share it below! ~ Stephen
