Educators should be aware of a brewing controversy that soon could limit how they are allowed to connect students to news articles and other copyrighted materials over the internet: Some online publishers, angry about the practice of “deep-linking” to their web sites, have begun threatening legal action against users of the tactic, calling it a violation of U.S. copyright law.

This so-called deep-linking occurs whenever a teacher or some other person provides a web link that bypasses another site’s home page and goes directly to a specific article deep within that internet site. Many teachers say they often supply their students with deep links, because it is the most time-efficient way to guarantee that children safely reach the content that pertains to their lessons.

“In the precious time we have with them, we like to guide students to the most appropriate resources for specific projects. We hope that deep-linking will continue to be an acceptable way of guiding students to information pre-selected by educators for them,” said Nancy Messmer, director of library media and technology for the Bellingham, Wash., Public Schools.

Despite Messmer’s hopes, the legal future of deep-linking remains in flux as lawyers, internet users, and online publishers debate whether deep-linking infringes on the rights of web site owners and content providers. Opponents of deep-linking argue that it costs sites in valuable advertising revenue if visitors are not required to visit the home page first.

A number of cases are cropping up in which online publishers and content providers have sought to prohibit deep-linking to their sites.

Recently, the Dallas Morning News voiced displeasure with deep links to its site from BarkingDogs.org by way of an angry letter to the smaller, Texas-based news organization. The letter asked that BarkingDogs.org “cease and desist” what it called “an unauthorized use of content.”

Rodale—which publishes Runner’s World, Backpacker, Bicycling, and Men’s Health magazines, among others—lodged a similar complaint against LetsRun.com. Most of that site’s content is composed of deep links to articles from publications across the nation. In response to the Rodale’s complaint, LetsRun.com has removed its link to a Rodale-owned article. The site’s masthead now reads: “LetsRun.com: Where we have no legal team.”

In both of these cases, of course, the offenders were competitors. But the question remains whether it’s possible to draw a legal line between who is allowed to deep link to a particular site and who is not.

Intellectual property lawyer Harvey Jacobs said that fair-use exceptions tend to be broader where education is concerned, because schools do not pose a direct competitive threat to content providers jockeying over ad revenue. He said arguments against deep-linking go against “the general grain” of the internet as a medium for shared information. But Jacobs did not rule out the possibility of a deep-linking ban for educators.

According to Jacobs, property owners have a right to protect what is theirs, even on the web. “The owner of that content can decide to be a bad neighbor,” he said.

A recent ruling by a Danish court has some proponents of deep-linking worried. In its July 5 decision, the Bailiff’s Court of Copenhagen sided with the Danish Newspaper Publishers Association in claiming that Danish company Newsbooster violated copyright laws by deep-linking to articles on some Danish newspapers’ web sites.

Although no legal precedent has been established yet in the United States that would classify deep-linking as a clear violation of copyright, the problem for educators lies in this possibility.

“It would cause some problems, in that internet use in some cases would not be as efficient,” said Bob Moore, executive director of information technology services for the Blue Valley School District in Kansas.

Sandra Becker, director of technology for the Governor Mifflin School District in Pennsylvania, said the very thought of schools losing their ability to deep link was cause for serious concern.

According to Becker, deep-linking is useful because it allows students to bypass certain types of content—including home-page advertising that can, at times, be viewed as offensive and often is blocked by federally mandated web filters in schools.

“Many of the ads [on the home pages of news web sites] deal with sexual materials,” Becker said.

Deep-linking also provides the easiest and most direct route to relevant content for younger web-surfers, who often are overwhelmed by the massive amount of content available to them online, Becker said.

“This will be a major problem for K-12 education if [deep-linking] were deemed a copyright violation,” she said.

Legal experts familiar with intellectual property issues don’t discount the charges leveled by web site owners and content providers. But, they say, there’s a reason for the lack of legal precedent in America: Chances are uncertain at best that a case against deep-linking would hold up in U.S. court.

Randy Lipsitz, a copyright attorney for New York-based Kramer Levin, said he does not think deep links infringe on current U.S. copyright laws. “Copyright protects against copying original works of authorship and claiming them as your own,” he said.

According to Lipsitz, deep links are a means of providing access to the content. That’s different than passing it off as original work.

Lipsitz didn’t rule out the possibility of a future ban on deep-linking. Instead, he described internet law as still evolving.

“The internet is still a new medium of communicating,” he said. “Things that couldn’t be done before are now being done.”

Intellectual property lawyer Jacobs said he expects any lawsuits against deep-linking would encounter several hurdles. But he sees two possible strategies for those who would challenge the practice in court: First, that deep-linking is a form of trespassing. It could be argued that web site owners have a right to control how people gain access to their sites in much the same way homeowners can control how people gain access to their homes, Jacobs said.

The second charge—and a more plausible argument, according to Jacobs—would be that visitors who enter a site by way of a deep link cannot knowingly agree to the terms and conditions of that site, which normally are listed on the home page.

Challengers “would argue that visitors came in through the side door instead of through the front door, where messages were posted,” Jacobs said.

Many legal experts agree that, even if the right to deep-link is preserved in court, content providers still have the ability to reroute visitors—including students— unwillingly to the home page of their web sites.

According to Lipsitz, when a user clicks on a web link, the receiving site can identify where the user is coming from. If the receiving site does not recognize the referring web address, there is technology available to redirect visitors to the site’s home page.

Lipsitz said that if web owners are concerned that potential visitors might miss out on home page banners and advertising, “all they’d have to do is just turn that technology on.”

Anji Stinson, an intellectual property lawyer for McGuire Woods LLP, posed this suggestion for teachers who want to make sure no copyright violation has occurred: Always ask permission from the web site owner before directing students to a deep link.

“It’s not much different than seeking a license to reproduce copyrighted material in a course packet. It’s a way to protect yourself,” she said.

From an educator’s point of view, Blue Valley’s Moore offered this advice: “The best way around this [issue] is for the school to subscribe to one of the many periodicals databases that exist. These are a far better way for students and teachers to access online articles from periodicals [than deep-linking].”

Bellingham’s Messmer concluded: “We teach kids about intellectual property and copyright at every turn. We respect the folks who share information and always try to give credit to authors and originators. We would just have to work harder with kids if every information search involved multiple decisions and extra clicks.”

eSchool News Online permits and, indeed, encourages educators to link directly to articles and other information posted on our web site and, in fact, provides a Content Exchange page to make deep-linking to news articles easier.

Related links:
Bellingham Public Schools
http://www.bham.wednet.edu

Dallas Morning News
http://www.dallasnews.com

eSchool News Content Exchange page
http://www.eschoolnews.org/exchange

Rodale
http://www.rodale.com

Blue Valley School District
http://www.bluevalleyk12.org

Governor Mifflin School District
http://www.berksiu.k12.pa.us/governormifflin.htm