Friday, February 20, 2009

The Right to Hyperlink

A case that could have not only impacted the game industry, but every gamer, blogger, and person who ever put any content on the internet, has just been settled. The settlement concerned the use of hyperlinks on the internet, and it's one of those rare cases that had the potential to impact everyone. However, since the gaming crowd tends to be more internet-driven than others, it truly had the potential to impact us. Thankfully, because it settled out of court, there was no legal precedent set. Despite that, the outcome is one that casts a dark cloud over the internet, and it's one that should offend most anyone.

Here's the short version of the facts: A real estate web site posted notices of the sales of certain properties. Those sale notices often listed the purchaser, and in the case of these specific purchases, the purchasers were attorneys with the law firm Jones Day. In those sales posts, BlockShopper linked to the attorney profiles of the purchasers. The purchaser's name was hyperlinked directly to the Jones Day attorney profile. Jones Day sued, alleging that this made it appear as though Jones Day was somehow affiliated with the site or otherwise diluted its trademark. BlockShopper, not having the money to defend a suit like this, settled out of court and removed all such hyperlinks. You can see how absurd this case is, and arguably, I'm violating the same principal by linking to the firm as I did in this very paragraph. No, this isn't a joke, and the original pleadings are available online.

I cannot fathom how this case was not rejected outright, but more importantly how anyone could possibly have come up with this claim in the first place. Text-based links are a cornerstone of the internet. They act like footnotes, allowing someone to reference something without interrupting the natural flow of the text. More importantly, it is obvious when these links move away from the actual site. First, most browsers display the full URL of a hyperlink when it's hovered over, and certainly once it's clicked on. More importantly, the URL is hard coded into the site. The only way it would be possible for consumers to be confused by a hyperlink is if either the URL or the linking site itself attempted to mimic the site that's being linked to. There are, literally, thousands of examples where similar domain names were quashed due to trademark issues because of actual or potential confusion or dilution of the brand -- examples we've discussed previously on LGJ.

This case, though, fails to present any evidence of actual confusion or even the potential for confusion. No average internet user would have been confused by the use of hyperlinks. More importantly, the allegation in the case that there is some unlawful action by means of a "link to web sites owned by others," is absurd. More importantly, the alleged "wrongdoing," that is, listing these employees as Jones Day employees and linking to their profiles, is one of the most clearly defined fair uses in trademark law. Would Nintendo object if an eBay re-sale of a Wii included a link to Nintendo's website? No. Has anyone objected when news sites like Joystiq link to the companies they are reporting on? No. Do I object when people link to my articles? Of course not. There's no content being taken for a copyright claim, and there's no likelyhood of confusion because people understand how links work.

This lawsuit basically alleges the internet shouldn't be allowed to operate. After all, these "links" might confuse people, and linking to things people make available to the public on the internet should be as strictly controlled as possible, right? Of course not. That's why this case was described as a "new entry in the contest for 'grossest abuse of trademark law to suppress speech the plaintiff doesn't like.'" Should this legal precedent have been established, rather than settling out of court, it would potentially bar pretty much everyone from using text-based links in favor of forcing the use of complete URLs throughout normal paragraphs, something that I can only describe as hideous as a writer, blogger, forum user, and internet resident.

Thankfully, a private settlement sets no such precedent, other than demonstrating that people without the resources to fight such suits may be the subject of bullying. I can only imagine that any subsequent such action would be the object of a greater movement by those on the internet with the resources and abilities to pursue a more comprehensive legal strategy. I also can't imagine, though, that many other people would take the position that a hyperlink can be viewed as trademark infringement. I do foresee that, as a result of this action, more disclaimers will clearly state that links to other sites should not imply association with or approval of content, even though this fact is obvious to the overwhelming majority of internet users.

For the time being, at least, we're all still free to link to sites without having the exact format of those hyperlinks dictated to us. I, however, wouldn't assume this issue will just vanish, either. If you thought net neutrality would be a rallying cry for many internet users, I can only imagine the response if the freedom to hyperlink were to be challenged again, and perhaps publicized better.

This site and its content has no association with Jones Day.

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