In Wake Of Penguin, Could You Be Sued For Linking To Others?

Many webmasters have been�desperately�trying to fix poor SEO work done to a site thanks to the recent Penguin update targeting webspam and the�bad link warnings�sent from Google. �The only current way to discredit a link is to have it removed as reverse nofollow�functionality�for webmasters simply doesn’t exist. �One recent example of a link removal�request�was particularly concerning as it claimed that the webmaster was�partaking�in illegal action against the company.

A recent example from IT blog pskl.us�brought to light a harsh tactic for a link removal. �A company had contacted pskl.us looking to have links removed via a DMCA (Digital Millennium Copyright Act) takedown�notice. �The DMCA�specifically�targets copyright infringment on the internet. �The specific note in question blamed the links on financial loses and search engine penalties. �Here’s the exact link removal request sent (Note: the�company�name was removed from our copy below as we have not seen the�official�emails):

It has come to our attention that your website or website hosted by your company contains links to <website> which results in financial losses by the company we represent, because of search engine penalties.

I request you to remove from following website (pskl.us)all links to <website> website as soon as possible.In order to find the links please do the following:1) If this is an online website directory, use directory�s search system to find �<company>� links.2) If there are hidden links in the source code of website, open website�s main page and view its source code. Search for �<website> in the source code and you will see hidden links.

I have a good faith belief that use of the material in the manner complained of is not authorized by <company> its agents, or the law. Therefore, this letter is an official notification to effect removal of the detected infringement listed in this letter.

I further declare under penalty of perjury that I am authorized to act on behalf of copyright holder and that the information in this letter is accurate.

Please, inform me within 48 hours of the results of your actions. Otherwise we will be forced to contact your ISP.<�company�> will be perusing legal action if the webmaster does not remove the referenced link within 48 hours.< company > �will be forced to include the hosting company in the suite for trademark infringement.

After this email was�received by pskl.us a lengthy back and forth was had. �It came out that someone at the company (or at a�competitive�company) had purchased hundreds of thousands of links to the site:

�However, we had a site cloak <company> and generate over 700K back links to our site without our knowledge. �Google stepped in and slapped us with a search ranking penalty to which our business has suffered major losses.

So this drastic technique brings up the point, is linking to other’s content illegal?

Linking Legality

In the United States many courts have found that merely linking to someone else’s public website is not illegal as long as the link is not to illegal or infringing content. �It should be known that actual theft of content by copying or linking to framed content from others has been defended as well as�linking�to illegal or infringing content.

Ford Motor Company v. 2600 Enterprises

The�plaintiff, Ford Motor Company, was displeased with the way vulgar domains (such F#ckgeneralmotors.com) were linked directly to Ford. �Ford lost the dispute as the court found that the link did not create a cause of action for trademark dilution, infringement or unfair competition. �The court also specifically�stated:

“This court does not believe that Congress intended the [Federal Trademark Dilution Act] to be used by trademark holders as a tool for eliminating Internet links that, in the trademark holder’s subjective view, somehow disparage its trademark. Trademark law does not permit Plaintiff to enjoin persons from linking to its homepage simply because it does not like the domain name of other content of the linking webpage.”

Ticketmaster Corp. v. Tickets.com, Inc.

In 2000 Ticketmaster brought a suit against Tickets.com for essentially “deep linking” to event pages where tickets could be purchased. �Tickets.com was simply linking to a public even page where�purchases�could be publicly made and the lawsuit was dismissed. �The court also made it clear that the act of linking was not against the law:

“hyperlinking [without framing] does not itself involve a violation of the Copyright Act … since no copying is involved … the customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.”

and

“the customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.”

In addition, those operating message boards, allowing user comments or hosting user generated content have even more protection under section�230 of the Communications Decency Act.

In conclusion, linking to others (legal, non-infringing) content is perfectly legal. �With that said have you seen an uptick in link removal requests?