Hyperlinking is okay, deep-linking is not
May 1, 2006 | 12:00am
Sometime in 1993, in Geneva, Switzerland, where information on the latest technological wonders are received in the timeliest manner, I remember a conversation I had with the head of the United States delegation to a conference on the emerging technologies, Ambassador Travis Marshall. It was at a lunch hosted by Travis held at the Hotel Richmonde. There were only four of us, and the only other lady guest was then the Philippine representative to the United Nations Agencies in Geneva, Ambassador Ching Escaler.
I felt extremely lucky that my friend Ching was the ambassador then. Throughout her stint, she provided the Philippine delegation with great support. Those were the years when the Philippines first emerged as the voice for developing countries and won successive elections to the governing council of the International Telecommunications Union (ITU) through a span of more than a decade. The ambassador who succeeded Ching was Lilia Bautista, my former classmate at the UP College of Law, and a close friend likewise. That indeed made me doubly blessed, and I will never forget those years of excellent synergy and collaboration between their office and the Philippine delegation. The amazement to interact with not only one but two Filipino lady leaders, I remember, was a conversation piece of sorts at the cocktail receptions and dinners that these conferences usually generated.
The same conversation piece presented itself when Ching and I found ourselves guests of Travis Marshall. But when he uttered the words "Worldwide Web" then, which I had never heard of yet, and talked about "future websites," explaining to me what these words will potentially signify, it was amazing. Especially when you relate those words to the present where they are now part of the ordinary and everyday vocabulary.
It was former US President Bill Clinton who recently said, "When I took office, only high energy physicists had ever heard of what is called the Worldwide Web. Now, even my cat has its own page."
The trouble the Worldwide Web and numerous websites today for that matter is the fact that they have created quite a great deal of legal problems that still remain unaddressed by a lot of countries in the global telecommunity. Our Philippine legal infrastructure remains deficient if not lacking. The problems encountered by website owners as global users of the Internet are in evidence today – everywhere in fact.
What makes the computer’s representation critical is that it can be manipulated so rapidly without direct human intervention. Once the program is determined and the machines set to work, the electrons fly until an answer is produced. Today, it has been said quite a number of times that websites should be able to interact in one single universal space. And this is precisely why legal cyberspace issues/problems have surfaced of no mean dimension today.
One of the things we should remember is the fact that part of the inhumanity of the computer is that once it is competently programmed and is working smoothly, it is completely honest. And that again is precisely one of the issues that could clash with the rights of privacy that many jurisdictions of the world are earnestly tackling today.
We all know by now that "linking" or "hyperlinking" is the process that connects one Internet site to another. Should another produce an unauthorized link that could be a "deep link" which, by the way, is a link from one site to another at a location different from the other site’s homepage, a link that casts your site in an unfavorable and bad light, or a link that triggers the impression that another should get credit for your site, then, legal action is likely to help. A successive procession of cease-and-desist letters, followed by a request for TRO are likely to succeed.
We should remember that the act of linking to another’s Internet website without permission can be a form of Internet trademark infringement. In the Philippines, trademark infringement statutes apply quite aptly. Our legal infrastructure on trademarks is, though necessitating updating, quite exhaustive. In the US, both state and federal statutes may be brought to bear in the instance that an entity has linked to a site without permission. Statutes that protect intellectual property expressly limit the use of intellectual property, which include many aspects of an Internet website in a commercial context.
In 1994, the US Lanham Act was cited by the Federal Supreme Court, which act prohibits the "use in commerce of any reproduction, counterfeit, copy, or colorable imitation of a registered mark in such a way as to likely cause confusion, mistake or to deceive." The same tenor is carried by our legal and judicial infrastructure.
The rationale exists, of course, that trademarks fundamentally help consumers to identify certain goods. It has, however, been argued that the use of linking reduces the value of a trademark because it triggers confusion. A learned jurist more than a century ago stated that, "The essential value of a trademark property right is to prevent confusion." Not too many jurists and lawyers today can be more brilliant and learned than the venerable Justice Oliver Wendell Holmes.
As long as the Internet site-to-site links only access the homepages of an Internet website, not too many people can argue that this sort of linking is not an allowed use, even if undertaken without permission. Remember that when one site links to another’s Internet homepage site, there is a potentially advantageous result as far as the other Internet site owner is concerned. This link can provide greater exposure to the homepage owner to increase dissemination of the site information and could provide the benefits of potential advertising.
Prospective problems result, however, when the link bypasses the homepage and attaches to an internal page of the Internet website. This, by the way, is another story, for then, the linking user bypasses the homepage and goes directly to other information; the owner of the homepage, in effect, is not able to profit from the link to his or her internal Internet web pages. This could be the "deep link" earlier referred to which is far more likely to amount to trademark infringement than homepage linking per se.
Many of these supposed links are logos, designs, symbols, graphics or highlighted texts that, if activated by the user by the click of the mouse, will display a new Internet website page. They are really quite interesting to the user. There are people, even friends of mine, that couldn’t care less about computers. One guy even went to the extent of saying that his computer was "a moron." There’s a man surnamed Bradley who said in a seminar: "If we continue to develop our technology without wisdom or prudence, our servant may prove to be our executioner." He was referring to the computer as his servant, of course.
One wise friend of mine who ignores the computer because he has four executive assistants and three secretaries to man his computers told me: "Soon silence will have passed into legend (because there is silence between the user and his computer – all you hear is the clicking of the keys). Day after day, man invents machines and devices that increase noise and distracts humanity from the essence of life, contemplation and meditation." Well, what do you know? I am glad he has time for the contemplative dimension in his life.
I, for one, have a recommendation in view of the foregoing statements I’ve made on "hyperlinking" and "deep links." Unless an unauthorized link is a deep link or a link that casts your site in a bad light, or leads to the impression that another should get credit for your site, no action should be taken. This is the reality of our Internet world today. We are also witnessing the evolution of Internet law which, by the way, is as interesting as it is exciting.
A modern technology philosopher said: "We will create a civilization of the mind in Cyberspace. May it be more humane and fair than the world our governments have made."
Let me tell you, I am in wholehearted agreement with Mr. Barlow, the technology philosopher.
Thanks for your e-mails sent to jtl@pldtdsl.net
I felt extremely lucky that my friend Ching was the ambassador then. Throughout her stint, she provided the Philippine delegation with great support. Those were the years when the Philippines first emerged as the voice for developing countries and won successive elections to the governing council of the International Telecommunications Union (ITU) through a span of more than a decade. The ambassador who succeeded Ching was Lilia Bautista, my former classmate at the UP College of Law, and a close friend likewise. That indeed made me doubly blessed, and I will never forget those years of excellent synergy and collaboration between their office and the Philippine delegation. The amazement to interact with not only one but two Filipino lady leaders, I remember, was a conversation piece of sorts at the cocktail receptions and dinners that these conferences usually generated.
The same conversation piece presented itself when Ching and I found ourselves guests of Travis Marshall. But when he uttered the words "Worldwide Web" then, which I had never heard of yet, and talked about "future websites," explaining to me what these words will potentially signify, it was amazing. Especially when you relate those words to the present where they are now part of the ordinary and everyday vocabulary.
It was former US President Bill Clinton who recently said, "When I took office, only high energy physicists had ever heard of what is called the Worldwide Web. Now, even my cat has its own page."
The trouble the Worldwide Web and numerous websites today for that matter is the fact that they have created quite a great deal of legal problems that still remain unaddressed by a lot of countries in the global telecommunity. Our Philippine legal infrastructure remains deficient if not lacking. The problems encountered by website owners as global users of the Internet are in evidence today – everywhere in fact.
What makes the computer’s representation critical is that it can be manipulated so rapidly without direct human intervention. Once the program is determined and the machines set to work, the electrons fly until an answer is produced. Today, it has been said quite a number of times that websites should be able to interact in one single universal space. And this is precisely why legal cyberspace issues/problems have surfaced of no mean dimension today.
One of the things we should remember is the fact that part of the inhumanity of the computer is that once it is competently programmed and is working smoothly, it is completely honest. And that again is precisely one of the issues that could clash with the rights of privacy that many jurisdictions of the world are earnestly tackling today.
We all know by now that "linking" or "hyperlinking" is the process that connects one Internet site to another. Should another produce an unauthorized link that could be a "deep link" which, by the way, is a link from one site to another at a location different from the other site’s homepage, a link that casts your site in an unfavorable and bad light, or a link that triggers the impression that another should get credit for your site, then, legal action is likely to help. A successive procession of cease-and-desist letters, followed by a request for TRO are likely to succeed.
We should remember that the act of linking to another’s Internet website without permission can be a form of Internet trademark infringement. In the Philippines, trademark infringement statutes apply quite aptly. Our legal infrastructure on trademarks is, though necessitating updating, quite exhaustive. In the US, both state and federal statutes may be brought to bear in the instance that an entity has linked to a site without permission. Statutes that protect intellectual property expressly limit the use of intellectual property, which include many aspects of an Internet website in a commercial context.
In 1994, the US Lanham Act was cited by the Federal Supreme Court, which act prohibits the "use in commerce of any reproduction, counterfeit, copy, or colorable imitation of a registered mark in such a way as to likely cause confusion, mistake or to deceive." The same tenor is carried by our legal and judicial infrastructure.
The rationale exists, of course, that trademarks fundamentally help consumers to identify certain goods. It has, however, been argued that the use of linking reduces the value of a trademark because it triggers confusion. A learned jurist more than a century ago stated that, "The essential value of a trademark property right is to prevent confusion." Not too many jurists and lawyers today can be more brilliant and learned than the venerable Justice Oliver Wendell Holmes.
As long as the Internet site-to-site links only access the homepages of an Internet website, not too many people can argue that this sort of linking is not an allowed use, even if undertaken without permission. Remember that when one site links to another’s Internet homepage site, there is a potentially advantageous result as far as the other Internet site owner is concerned. This link can provide greater exposure to the homepage owner to increase dissemination of the site information and could provide the benefits of potential advertising.
Prospective problems result, however, when the link bypasses the homepage and attaches to an internal page of the Internet website. This, by the way, is another story, for then, the linking user bypasses the homepage and goes directly to other information; the owner of the homepage, in effect, is not able to profit from the link to his or her internal Internet web pages. This could be the "deep link" earlier referred to which is far more likely to amount to trademark infringement than homepage linking per se.
Many of these supposed links are logos, designs, symbols, graphics or highlighted texts that, if activated by the user by the click of the mouse, will display a new Internet website page. They are really quite interesting to the user. There are people, even friends of mine, that couldn’t care less about computers. One guy even went to the extent of saying that his computer was "a moron." There’s a man surnamed Bradley who said in a seminar: "If we continue to develop our technology without wisdom or prudence, our servant may prove to be our executioner." He was referring to the computer as his servant, of course.
One wise friend of mine who ignores the computer because he has four executive assistants and three secretaries to man his computers told me: "Soon silence will have passed into legend (because there is silence between the user and his computer – all you hear is the clicking of the keys). Day after day, man invents machines and devices that increase noise and distracts humanity from the essence of life, contemplation and meditation." Well, what do you know? I am glad he has time for the contemplative dimension in his life.
I, for one, have a recommendation in view of the foregoing statements I’ve made on "hyperlinking" and "deep links." Unless an unauthorized link is a deep link or a link that casts your site in a bad light, or leads to the impression that another should get credit for your site, no action should be taken. This is the reality of our Internet world today. We are also witnessing the evolution of Internet law which, by the way, is as interesting as it is exciting.
A modern technology philosopher said: "We will create a civilization of the mind in Cyberspace. May it be more humane and fair than the world our governments have made."
Let me tell you, I am in wholehearted agreement with Mr. Barlow, the technology philosopher.
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