A case that threatens the right of Web sites to link freely.
Last April, startup real estate news site BlockShopper ran the headline "New Jones Day Lawyer Spends $760K on Sheffield" with a link to the bio for the lawyer in question—Jacob Tiedt—from the Web site of his law firm, Jones Day. In July, it ran a similar item about a home purchase by Dan Malone Jr., another Jones Day lawyer, with the link to his Jones Day bio.
BlockShopper was following standard operating procedure by linking to publicly available Web sites. But Jones Day got mad. The law firm (a big one, at 2,300 lawyers) has never publicly said why it sued; maybe the powers that be there thought the posts compromised their lawyers' privacy. Housing records are public documents, but the Web turns public into accessible, and the firm presumably wasn't thrilled about having its attorneys' home purchases broadcast. Jones Day demanded that BlockShopper remove the items. When BlockShopper refused, the firm sued the 15-staff startup for trademark infringement. Jones Day's legal theory was that BlockShopper's link would trick readers into thinking that Jones Day was affiliated with the real estate site.
This may seem far-fetched, but the judge in the case didn't think so, and that led to a settlement this week that will require BlockShopper to change the way it creates links. And that's not a good signal to send about the Web, where linking has been an unrestricted currency available to all.
Trademark infringement is supposed to turn on consumer confusion. For instance, if you set up a roadside coffee stand, sell instant coffee, and market yourself as a Starbucks outpost, you're probably infringing on Starbucks' trademark by tricking people into thinking that you're the company.
The idea that readers of a real estate news site would somehow be confused by links to Jones Day, on the other hand, shouldn't have passed the straight-face test. One legal blogger proposed that the attorneys who brought the suit take ethics classes. Paul Alan Levy of Public Citizen described the lawsuit as a "new entry in the contest for 'grossest abuse of trademark law to suppress speech the plaintiff doesn't like.' " The digital rights groups Public Citizen, Electronic Frontier Foundation, Citizen Media Law Project, and Public Knowledge tried to file a friend-of-the-court brief asking for the case to be dismissed.
No go. In November, federal district court Judge John Darrah rejected the amicus brief and denied BlockShopper's motion to dismiss the case before trial. Two months earlier, he had issued an injunction requiring BlockShopper to remove the Jones Day articles while the case was pending.
Faced with the prospect of big legal bills and an unfriendly judge, BlockShopper co-founder Brian Timpone decided to settle. On Tuesday, the real estate site said it agreed to change how it links to Jones Day. BlockShopper will no longer use the names of Jones Days attorneys as anchor text. Instead, it will use the full and cumbersome URL. In other words, Timpone said, instead of posting "Tiedt is an associate," the site will write "Tiedt (http://www.jonesday.com/jtiedt/) is an associate." (The agreement also calls on BlockShopper to say that the lawyer in question is employed at Jones Day and that more information about the attorney is on the firm's Web site.)
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.
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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