BlockShopper v. Jones Day: The right of Web sites to link.

The law, lawyers, and the court.
Feb. 12 2009 4:49 PM

Linked Out

A case that threatens the right of Web sites to link freely.

(Continued from Page 1)

You can see why BlockShopper gave in: It's a little company that had already spent six figures defending itself, and it didn't want to keep paying to fight a big law firm. But it's hard to see how this settlement addresses Jones Day's trademark complaint. What's better about the new method of linking, from a trademark point of view? It doesn't accomplish much other than to burden BlockShopper with following a special style for Jones Day items. If the firm's real goal was to squelch information it didn't like—items about lawyers' home purchases—this settlement doesn't accomplish that.

But in a larger sense, Jones Day won. The firm gained control over how an online publisher builds hyperlinks. The actual change Jones Day wrought may be small, but it signals to companies that they can force sites to revise their linking styles by alleging trademark infringement. And Judge Darrah's decision not to dismiss the suit signals that Web publishers may have to spend significant sums to deal with this kind of litigation.

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Consider what it would mean for Web publishers if lots of other companies decided to demand a say over how other sites linked to them. Jones Day wants URLs used as anchor text, but it's not hard to imagine that another company would want something else—a name or a description, for instance. Web sites could then be forced to use different linking protocols for every company they write about. Not only would they lose control over stylistic decisions, but accommodating a variety of individual requests could prove clunky and labor intensive, which also means expensive.

The Jones Day-BlockShopper settlement appears to be the first precisely of this kind. Last December, neighborhood news site Gatehouse Media sued the New York Times Co. for posting Gatehouse headlines and first sentences on Boston.com, which the Times owns. Gatehouse mainly complained that Boston.com violated the Gatehouse copyright. That case, too, settled, when the Times Co. agreed to stop publishing Gatehouse headlines and openings. Digital rights advocates weren't happy about that. But the case was mainly about whether Boston.com's use of the Gatehouse words was a "fair use" of copyrighted material, not the broader right to link. In fact, the agreement specifies that Boston.com can continue to link to Gatehouse.

Other cases that have addressed links and copyright dealt with the permissibility of "deep linking"—linking to a page other than the home page—which, of course, is indeed permitted. Ticketmaster famously lost a lawsuit against Tickets.com about just this. But that case was about copyright infringement; by making a trademark claim instead, Jones Day opened up another legal avenue.

If sites really needed permission to link to others, the Web would be a very different place. It's hard to imagine there would be a Gawker, or for that matter a TMZ, a Wikipedia, or anywhere else that embarrasses the subjects of posts. In another example of an effort to stop linking, a city lawyer in Sheboygan, Wis., demanded that blogger (and political critic) Jennifer Reisinger remove from her site a link to the police department. Reisinger has sued various city officials for violating her First Amendment free speech rights. Her case is pending in federal district court in Wisconsin. Let's hope the judge in Reisinger's cases sees linking differently than Judge Darrah did. If cases like these come out the wrong way, the Internet could go from a Web to a series of one-way roads.

Wendy Davis is a journalist with Mediapost.

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