During the last decade, the World Wide Web has undergone tremendous changes providing the public and the court system with unprecedented, debatable issues. One of the currently debated issues is the use of links. Web navigation has eased due to the increased number of links between Web sites. Web users can begin with just one Web page address, a Uniform Resource Locator (URL), and find unlimited Web sites originating from all over the World with the use of linking. The two types of linking causing legal debates are Hypertext Reference (HREF) links and frames (Raysman and Brown 3). While intellectual property must be protected, First Amendment protection must also be granted to Internet communication. Regulation of World Wide Web linking should be limited to unauthorized copies and manipulated representations.

Hypertext links are the basic links directing users between Web sites. The link usually consists of a visual or text separated from other text and differentiated by a different color or formatting. It was previously thought that this simple type of linking would not be viewed as a violation of any rights (Raysman and Brown 37). However, trademark dilution, copyright infringement and unfair competition are now being debated in regard to hypertext links.

One case that questioned the role of these laws was the Ticketmaster Corp. vs. Microsoft Corp. The Microsoft Web site “Seattle Sidewalk” provides users with event information including a link to a Ticketmaster site enabling users to purchase event tickets. This debate stems from the fact that the link was to a Ticketmaster subsidiary page instead of the homepage. This prevented users from being exposed to Ticketmaster's policies, service information and advertising. Ticketmaster claimed that this violated the Lanham Act for trademark dilution, copyright law and unfair competition. (Madoff S1, S6)

This type of WWW linking should not be considered a violation because Microsoft did not copy or modify the information Ticketmaster published on the Web. To qualify as a direct copyright infringement, “an unauthorized 'copy' of copyrighted material is made” (Freeling and Levi S5). Copyright owners also have the right to produce derivative works of the material. Microsoft did not violate this area, but simply point the user in the right direction. Trademark infringement and unfair competition stated by the Lanham act occurs “when the defendant's conduct, whether by use of plaintiff's trademark or other false statement, is 'likely to cause confusion, or cause mistake, or to deceive' as to the 'origin, sponsorship, or approval' of the defendant's goods.” (Mitchell and Mende S1). If a trademark or word mark is used to correctly identify the direction of the link in a nondeceitful way, this should not qualify as a violation of trademark protection.

Most Hypertext links are usually viewed as “free promotion” (Levi B15). However, some links are unwelcomed by the linked-to site, due to an increase in traffic or an unfavorable association. A pornographic site could include a link to an online bookseller causing a problem for the bookseller. However, if the bookseller sells literature of interest to the pornographic site users, the bookseller places itself in that situation. The linking site is only providing direction for its users. Whether a hypertext link is unwelcomed or it is a “deep” link, such as the link to Ticketmaster, a violation has not occurred unless unauthorized or modified copies of the linked-to Web site have been made.

An advancement in Web navigation introduced in January 1996 by Netscape Communications Corp., framing, allows a viewer screen to be split into multiple, smaller scrollable windows and frames that may operate independently (Raysman and Brown 3). Framing poses problems, because it allows Web designers to provide an embedded link within its own table of contents and advertising. One case that raised these issues was Washington Post Company v. TotalNews Inc., 97 Civ. 1190 (SDNY). TotalNews operates a Web site providing links to several other news source Web sites. The problem with this type of linking was that the information Washington Post generated was now embedded among TotalNews advertising, table of contents and logo. This framing also disregarded the advertising set up by Washington Post. Although this was not a preempted case, copyright law still provides guidance. A copyright owner holds the exclusive right to “recast, transform or adapt” the owner's copyrighted work (Madoff S6) and a violation occurs if a “copyrighted work is merely altered, modified or presented to the public in a distorted form” (Freeling and Levi S5). Because TotalNews linked to only a portion of the individual news sites, this should be viewed as a violation of copyright law. The settlement instructed TotalNews to discontinue linking to the news source sites using the framing technique. They are however permitted to provide direct links to these sites.

While current copyright and trademark laws give guidance to determine what is acceptable on the Web, these usual rules should not apply with equal force to Internet communication. One recent decision by a federal judge in Georgia in the case of ACLU vs. Miller leads in this movement (Kuester 32). New cyberspace linking cases should refer to current laws while concentrating on whether an unauthorized or modified copy has been made.