The Legalities of Linking

As technology progresses and faster ways of transferring information develop, legal issues surrounding not only the ownership of property, but control over its accessibility (when, where, why, and how it is obtained), are emerging. Indeed, something as simple, inherent, and seemingly harmless as creating a hyperlink[1] (hereinafter “link”), has caused a spike of intense litigation.[2] Not surprisingly, many of these actions allege at least one count of intellectual property infringement.

When one website contains a link to another, a web user, due to the speed of modern connectivity, is almost instantly – upon clicking – looking at the destination page of the link.[3] Thus, the speed, nature, and character of links and their transitions may implicate two distinct intellectual property doctrines.[4] For copyright theorists, when a user clicks certain types of links, the instantaneous request and display of another page is essentially a taking of intellectual property.[5] Ignoring the code-based behind-the-scenes forwarding operations that take place when the user clicks the link, copyright theorists contend that Page X’s link to Page Y, by virtue of the instantaneous nature or subtle/elusive character of its link, is essentially displaying the content of Page Y without the author’s consent.[6]

Alternatively, trademark theorists argue that the act of linking itself is never a taking of property; but instead, a recipe for confusion, necessarily obfuscating the true source or author of the subject material.[7] For trademark theorists, when a user on Page X clicks Page X’s link to Page Y, the instantaneous transfer or character of the link to Page Y may confuse the user, making it difficult or impossible for them to discern the true author or origin of the now displayed material.[8] Worse yet, they argue, the user may obtain the mistaken belief that the now displayed material is actually the property or authorship of the creator of Page X.[9]

In Jones Day v. Blockshopper LLC, a law firm (Jones) sued a real estate website (Blockshopper) in equity, for posting an article about a few of their attorneys’ recent home purchases, with in-text links to the attorneys’ biography pages on the Jones firm site.[10] Jones argued trademark infringement, based on allegations of market dilution and confusion.[11] In essence, Jones argued that Blockshopper’s links would either dilute Jones’ name by creating the erroneous impression that the two companies were affiliated, or confuse users as to the true origin of the material, or nature of the relationship between the companies.[12]

Holding Jones’ trademark claims sufficiently plausible to state a claim for relief, the district court denied Blockshopper’s motion to dismiss.[13] Faced with mounting legal fees, Blockshopper settled, agreeing to amend its linking practices with respect to Jones.[14]



[1] A clickable reference to another source that transfers the user to that source when clicked on. See <http://www.webopedia.com/TERM/L/link.html> (accessed Aug. 11, 2012).

[2] See Eugene R. Quinn, Jr., Web Surfing 101: The Evolving Law of Hyperlinking, 2 Barry L. Rev. 37, 43 (2001).

[3] Id. at 44.

[4] Id. at 44-46.

[5] Id.

[6] Id.

[7] Id. at 46-47.

[8] See id.

[9] Id.

[10] Jones Day v. Blockshopper LLC, No. 08CV4572, 2008 WL 4925644, at *1 (N.D. Ill. Nov. 13, 2008).

[11] Id. at *2.

[12] Id. at *3-4.

[13] Id. at *4.

[14] BlockShopper v. Jones Day: The right of Web sites to link, SLATE.COM (Feb. 12, 2009, 4:49 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2009/02/linked_out.html.

Author: Brian Klein

I am an Associate Editor for the Rutgers Computer and Technology Law Journal, and live in Bloomfield, New Jersey. I currently work for the Offices of Michael J, Lunga, Esq., LLC, Of Counsel to McGivney & Kluger, PC, in Florham Park, New Jersey, doing complex medical malpractice litigation. Prior to attending Rutgers School of Law-Newark, I earned a BA in Jurisprudence from Montclair State University. After graduating from Montclair, I worked for a personal injury attorney in Bloomfield, New Jersey, and an adoption attorney in Montclair, New Jersey. Throughout my childhood and adult life I have been fascinated with the law and technology. I try to keep up with current technological trends, and am excited to connect my technological background with my interest in the law.

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