Saturday, February 21, 2009

Blockshopper settles deep linking case with Jones Day; could "trademark dilution" imperil deep linking on the Web?

The “Blockshopper” case discussed here in November 2008 has been settled out of court, and some observers feel that the defendant was bullied into settlement and that the judge failed to follow the law in refusing to consider amicus briefs or even in not ruling on the points of law before issuing the injunction.

Ars Technica has an article by Jacqui Cheng, “BlockShopper bullied into settling over Web links, link here. Apparently the agreement allows BlockShopper to link to “Jones Day” only if it spells out the name of the site in the URL. It’s hard to grasp how doing otherwise is “trademark dilution,” and the agreement threatens to set up a precedent where deeplinking is based on “permissions”. However, since it did not go to trial (the defendant did not have the money), it doesn’t set a precedent, and it sounds likely that an appeals court would have accepted this sort of trademark “argument.”

Slate has an even more detailed article that rings the warning bells, by Wendy Davis, “Linked Out: A case that threatens the right of Web sites to link freely,” link here. Davis points out the “trademark dilution argument”, which might be augmented by the 2006 revision law, could cause undoing of the previous cases that maintained that deep linking is all right in copyright law because it is essentially bibliographic (the 2000 Ticketmaster case).

And here is a PDF copy of the Settlement Agreement.

Once in a great while, I find a situation myself where I refer, with a hyperlink, to something someone wrote or did "personally" where it might be convenient to mention their professional connections with the link. This certainly happens with lawyers or insurance agents, for example. On a few occasions, I have avoided giving the "professional" link if I knew that the person's activity was "personal." This gets related to the whole "online reputation" issue. It sounds like it is stretching things, however, to claim that this is "(prospective) trademark dilution." Some legal observers warned in 2006, which President Bush signed the revised law, that there would be some "bullying".

Given all our financial turmoil, we seem to be heading toward a world in which “the strong” want to establish their power over the “weak” for power’s sake. A lot of people, unfortunately, believe that might makes right. I thought that it was up to the law to stop this kind of powergrabbing.

Update: Feb. 24, 2009

Nevertheless, Todd Bishop, on his Microsoft Blog (on Techflash) offers this humorous account of the value of what Blockshopper does, with his "Stop the presses! Some guy from Microsoft just bought a house!" link here.

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