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Copyright "Education" Sites Makes Incorrect Claims About the Law:

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.

Humble Law Student:
Haha, you really sent that?

Professor Volokh, you are quite the troublemaker! j/k btw
6.13.2006 2:16pm
Captain Copyright (mail):
When I sue you, will you promise to appear pro se?
6.13.2006 2:18pm
Michael Barclay (mail):
This site apparently has already modified its legal notice, especially the part about removing links to its site. The wording as of 10:19 a.m. PDT is:

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.
6.13.2006 2:20pm
Canada:
Prof. Volokh,

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
6.13.2006 2:22pm
Nick (www):
Eugene, you should send them links to some of the posts from this site which frankly discuss the topic of homosexual marriage, and see if that enrages them enough. Some may consider them "homophobic".
6.13.2006 2:48pm
logicnazi (mail) (www):
Hmm, I think I need to go put up some pornographic content on my blog and link to this website.

Now I just need to write up some pornographic content that I'm willing to put on my public blog.
6.13.2006 3:06pm
troublemaker:
Even better, you should add a page with some racist, sexist and homophobic content, and link to them from that page.
6.13.2006 3:08pm
The Original TS (mail):
Well, I see this kind of thing all the time. I just file it away under "nice try."

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.
6.13.2006 3:09pm
Bruce:
"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." I'm not sure this is accurate as a blanket statement of what U.S. law provides. For one thing, it may depend on the purpose of the link. If the link is for purposes of discussion or reference (see this site over here), it's doubtful there's any issue; but if it's an inline link to an image or page, there could be copyright or trademark issues. In any event, I think it's safe to say this area of the law is a little unclear.

And what's up with hyphenating "no one"?
6.13.2006 3:12pm
Splunge (mail):
Geez, Professor Volt, when your neighbor's dog barks at 11 PM, do you just get out your .38 and put a slug through the beast? I mean, they're doofus idiots, but what about starting off with a less hostile, more professorial communication enlightening them as to their legal reality, and pointing out FYI some of the many interesting real-life complications about copyright they don't seem to have thought entirely through?

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...
6.13.2006 3:20pm
Eugene Volokh (www):
Huh -- I have to admit to pugnacity in my e-mail, but I had thought that it stopped well short of the "incendiary," or comparable to either a .38 slug or even a hockey game.
6.13.2006 3:27pm
Brennan:
While it is always satisfying to "Blame Canada," this claim to copyright protection is not unheard even in better known parts of the United States (a low blow, I know).

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?)
6.13.2006 4:12pm
Brennan:
Perhaps I should have linked to the relevant part of the Connecticut Judiciary's website.
6.13.2006 4:16pm
Tinhorn (mail):
Regarding the title of the post:

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.
6.13.2006 4:20pm
Dilan Esper (mail) (www):
I am no expert in copyright law, but I seem to recall there were some infringement cases involving web links, and that the law may not be quite as clear as Professor Volokh says it is.

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.
6.13.2006 4:40pm
RBG (mail):
Many Japanese web sites have long attempted to create the impression that the default rule is that linking without permission is prohibited unless the site contains a notice to the contrary. Websites that permit linking without permission generally indicate such with the Japanese-English words "Link Free" somewhere on the site.

An online IT terminology dictionary provides this definition and commentary on the term "Link Free."

A word meaning that one may link to a website without the website owner's permission. Used as follows: "This page is link-free."

Given that website owners who don't want people to link to their sites shouldn't be displaying their pages on the Internet, taking the trouble to proclaim that your site is "link-free" doesn't make much sense. However, among owners of personal sites, there seems to be the common assumption that it's a matter of etiquette to request permission before linking, and it is now accepted practice to declare that your site is "link-free."

Incidentally, because "link-free" is a Japanese-English term, native English speakers will not understand it (not to mention that it appears that the belief that permission for linking is necessary seems to be a custom unique to Japanese Internet culture). In English, "[ ]-free" means "free from [ ]"--in other words, "no [ ]" (e.g., "sugar free" means "without sugar"), so a literal interpretation of "link free site" would be "a site with no links," i.e., "a site that doesn't link anywhere" or "a site that is not linked from anywhere."
6.13.2006 5:00pm
Bob Loblaw (www):
Tinhorn makes a good point - they make no actual claim about the law. As Brennan points out, however, the Connecticut Judiciary does:

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 by contacting the webmaster at judicial.webmaster@jud.ct.gov.
Seems like your "pugnacious" email would be better sent to them.
6.13.2006 5:36pm
Ken Arromdee (mail):
Link

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
6.13.2006 5:38pm
Ken Arromdee (mail):
Link

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
6.13.2006 5:38pm
cmn (mail) (www):
Some of the prior commenters have stated that they know of cases in which linking was thought to raise issues of copyright infringement. I know of cases like this, but only when they involve cached or "inline" linking, in which the linker is not merely sending people to the copyright owner's own website, but somehow copying or importing the copyrighted material into the linker's own website. A link like the one Eugene used essentially amounts to putting up a sign that says, "Hey, Captain Copyright is displaying his copyrighted material over there, why don't you go look?" I don't see how this can possibly infringe on one of the exclusive rights reserved to copyright holders, but if anyone knows of a case actually suggesting this I'd be very grateful for a cite.
6.13.2006 5:44pm
Splunge (mail):
I had thought that it stopped well short of the "incendiary"...

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.
6.13.2006 5:50pm
cmn (mail) (www):
P.S. While reasonable people can certainly differ on this point, I'd have to side with those who understand a purported grant of "permission" to imply an presumed power to exclude. If it were simply a matter of courtesy, I'd expect the web owner to be asking visitors please not to do certain things. Not a big deal, but given that this is a site purporting to educate people about copyright law, the ambiguity strikes me in this instance at least as fair grounds for criticism.
6.13.2006 6:00pm
Apodaca:
Good for you, Eugene.

By the way, National Public Radio asserts the same non-existent right:
Links to NPR Web Sites
NPR encourages and permits links to content on NPR Web sites. However, NPR is an organization committed to the highest journalistic ethics and standards and to independent, noncommercial journalism, both in fact and appearance. Therefore, the linking should not (a) suggest that NPR promotes or endorses any third party's causes, ideas, Web sites, products or services, or (b) use NPR content for inappropriate commercial purposes. We reserve the right to withdraw permission for any link.
(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.
6.13.2006 6:23pm
You Know Who:
I agree with Splunge: Eugene's "pugnacious" email was bad form (and a bit out of character).

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.
6.13.2006 7:22pm
Apodaca:
Also Pitney Bowes, which claims to prohibit linking to any page on their site other than the home page.

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.)
6.13.2006 7:30pm
TallDave (mail) (www):
Heh. Nice.
6.13.2006 7:50pm
Bruce Hayden (mail) (www):
There is really no reason I see that the state of CT can't claim copyright in their web pages, though I have a major problem with them using "copyright" as a verb. It really isn't, at least not anymore. They did nothing to procure the copyright, except to supply sufficient original expression. Indeed, I typically take this use of the word as indicia that whoever is claiming copyright is relatively ignorent about copryight law.

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?
6.13.2006 8:00pm
Jonathan Burdick (www):
I visited that site eons ago ... scheissmerde! D'ya mean people can tout themselves as experts on the web and get such a basic point wrong? Kudos, Eugene. Kudos.
6.13.2006 9:20pm
Bob Loblaw (www):

There is really no reason I see that the state of CT can't claim copyright in their web pages
Did anyone claim otherwise?
6.14.2006 3:38am
Paul Gowder (mail):
Go Eugene! It's a small blow against copyright abuse, but it's a blow all the same.
6.14.2006 1:52pm