Captain Copyright, a Canadian "education" site about copyright — aimed at conveying a pro-copyright message to children, and at being used by schoolteachers for that purpose — has the following "Legal Notice":
Links from Other Web Sites ...Permission is expressly granted to any person who wishes to place a link in his or her own web site to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any web site the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright. In the event we contact you and request the link be removed, you agree to comply with that request promptly. If you link to or otherwise include www.accesscopyright.ca on your website, please let us know and create any link to our home page only.
Under U.S. law, no-one needs permission to link to another site; your bitterest enemy is free to link to your site even if you insist that the link be removed. Nor is simply placing a paragraph on the Web page saying that "you agree to comply with that request promptly" sufficient to impose any contractual obligation on you. (Even the shrinkwrap licensing cases don't go that far.) I'm not an expert on Canadian copyright law, but Prof. Michael Geist, who is an expert on the subject (and whose column alerted me to the issue) describes Canadian law the same way.
In any case, I'm sending the following message to the address posted on the site (privacy at accesscopyright.ca):
Dear Madam or Sir:I wanted to inform you that I've linked to your site at http://volokh.com/archives/archive_2006_06_11-2006_06_17.shtml#1150217780, a post on a Weblog that gets about 15,000 unique visitors per day. The link is quite critical, and I hope that it will (justifiably) harm your reputation: I point out that your "Links from Other Web Sites" policy is legally unenforceable, implicitly misstates the law in ways that may mislead lay readers (including children and schoolteachers who are visiting your site), and therefore casts doubt on the credibility of the "educational" material you post on your site.
Should you request or demand that I remove the link, I will categorically refuse, as I am entirely within my rights to do. Copyright law does not restrict my linking to your site, and because I never expressed agreement to the offered terms on your site, I am not contractually bound by your assertions of your supposed rights, either. I have absolutely no intention of complying with your requests. Rather, I intend to continue to link to your site in ways that injure your reputation.
Eugene Volokh
Professor of Law
UCLA School of Law
(affiliation listed for identification purposes only; I speak for myself, not for my institution)
Proprietor, The Volokh Conspiracy, http://volokh.com
UPDATE: Commenter Michael Barclay reports that the site has very recently (since I visited it and copied the material quoted above) changed its policy slightly to say:
Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of Access Copyright. Specifically, permission to link is explicitly withheld from sites featuring pornographic, racist or homophobic content. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know.My criticism of the policy still stands.
Professor Volokh, you are quite the troublemaker! j/k btw
Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of Access Copyright. Specifically, permission to link is explicitly withheld from sites featuring pornographic, racist or homophobic content. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know.
Your outrageous letter symbolizes everything that is wrong with the US-Canada relationship. We have been very peeved at our southern neighbors since the publication of the libelous depiction of Canadian life in "Strange Brew." Your letter is the last straw. We will now invade your country. You joser.
Sincerely,
Canada
Now I just need to write up some pornographic content that I'm willing to put on my public blog.
Amusingly, the "updated" version removes this language, "If you link to or otherwise include www.accesscopyright.ca on your website, please let us know and create any link to our home page only." Deep linking is still a live issue, even though, in my opinion, it shouldn't be.
And what's up with hyphenating "no one"?
Or are you just proving the point that turned up in some other thread, a while ago, that people are inclined to be much more incendiary in e-communications than they would be face to face? At least, I hope you and the Canadian schoolmarms wouldn't have faced off like NHL players when the puck drops had you met in person over tea...
For instance, I recently noted that the Connecticut Judiciary's website has a somewhat similar policy: "The Judicial Branch website is copyrighted; therefore, entities wishing to link to the website at www.jud.ct.gov must request to do so in writing ...."
(Sadly, I failed to request such permission from the Connecticut courts before including the link above, so I am apparently in violation of the Connecticut Law of Copyright. Thank God for federal preemption, eh?)
I see no incorrect "claim" made by the first version of the Legal Notice. The Legal Notice does not say "Copyright law forbids your from doing X," or anything of the sort. Rather, the Legal Notice (1) says what permission is granted (which is not a claim about copyright or other law); (2) says what permission is withheld (which might be irrelevant, but which is not a claim about copyright or other law); (3) attempts to secure a representation of agreement by the user (which, again, might be irrelevant, but which is not a claim about copyright or other law); and (4) makes a request.
What "incorrect claims" about the law do you contend the author made? (Please to not rely on "implied" claims, the existence of which are subject to individualized interpretation. Surely someone is permitted to say "I do not grant permission to do X" without implying that the law allows him to prohibit people from doing X -- along the lines of "I don't know whether the law says you need my permission to do X, but please be advised that you do not have it.") Lawyers, myself included, use similar "permission" and "you agree" language all the time -- not by way of making a "claim" that the law is one way or the other, but as *notices* that might sway a judge or jury in a close case (not that this particular one is) to rule our client's way.
So, I would agree that most of the language is legally irrelevant (or very likely legally irrelevant), but that's a far cry from an incorrect "claim" being made.
Personally, I would favor a rule that linking to material, by itself, is either not infringement at all or is a fair use. But as I said, I am not sure that there is yet controlling legal authority that unequivocally establishes the position that Professor Volokh portrays as settled.
An online IT terminology dictionary provides this definition and commentary on the term "Link Free."
Seems like your "pugnacious" email would be better sent to them.
Summary: Captain Copyright has:
1) copied a copyrighted character owned by someone else
2) copied GFDL text from Wikipedia with attribution or a copy of the GFDL as the license demands
Summary: Captain Copyright has:
1) copied a copyrighted character owned by someone else
2) copied GFDL text from Wikipedia without attribution or a copy of the GFDL as the license demands
Oh aye. I understand completely. For example, although I may post a pugnacious comment on the Volokh Conspiracy from time to time, I am in the same way confident they always stop well short of being incendiary. That's why I know none of the cautions in the comment policy at the bottom of this page apply to me. I am always the soul of reason and moderation. It's the rest of you lot that inexplicably lose your head from time to time.
By the way, National Public Radio asserts the same non-existent right:(Emphasis added.)
I enjoy NPR programming, but it is just too stupid for words that NPR promotes and endorses the notion -- widely held by third parties -- that a website owner may withhold or withdraw permission to link to its site.
Googling "website is copyrighted"+"to link" (use " " and +) reveals that many entities, including legal ones (Connecticut Judicial Branch, Rubbermaid, and Papermate), have policies that seem similar to Captain Copyright's.
Oops.
(And yes, I see the word "please" on that page, but PB also insists elsewhere that people using the site agree to be bound by the T&C. Oops, I did it again.)
That said, they, or someone, should have a copyright in their web pages. There is nothing that I know of in the copyright laws that puts works of a state govt. outside copyright law - except possibly fair use. Of course, their linking policy has the same problem as this guy's did, except that we know what U.S. law is, and this ain't it. As bad, their terms of use would seem to try to form a contract with those browsing the site. Don't they have any lawyers there?