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 July 18, 2003: Breaking News - Deep Links are legal !


The German Federal Court of Justice issued a verdict today holding that an online service which offers links to articles in a protected database is not in violation of copyright and competition law.

The lawsuit against an online news search engine which allowed users access to articles in the database of the plaintiffs via deep links was based on paragraph 87 b of the German copyright law (UrhG). This paragraph derives from European Union Directive 96/9/ECC of March 11, 1996. A decision, which had banned deep linking by search engines to databases could have influenced other EU member states' jurisprudence and caused significant difficulties for search engines outside the European Union as well. Try to imagine the internet without search engines!

The plaintiffs did not succeed with their argument that deep links are illegal, because they take users directly to news articles, bypassing introductory pages and advertising, thus depriving the plaintiffs of revenue from their advertisements. In the view of the court plaintiffs can not demand that users have to start with the homepage. The court stressed the importance of deep links for the internet and held that it is up to the plaintiffs to prevent deep links with technical measures, if they don't like them. The court did not answer the question if the circumvention of these measures would be illegal. 

Where there is light, there is also darkness. The fight about the legality of deep links is far from being over after this decision. Upcoming Amendments to the German copyright law, which implement the May 22, 2001 European parliament and council directive (2001/29/EC) on the harmonization of certain aspects of copyright and related rights in the information society, introduce a new right of making available. The discussion if hyperlinks violate this new exclusive right of a copyright holder, has already begun. The Federal Court of Justice adressed this issue and said that linking does not violate the making available right, but failed to deliver a convincing argument. 

A similiar discussion was addressed by the U.S. Court of Appeals for the Ninth Circuit, which held that inline linking violates the copyright owner's right of public display. For more information on this case, click here!

So, with the new decision, a battle has been won today, but the war is not over yet. Courts worldwide will be faced with the issue of deep linking again. For now, the danger that courts will prohibit deep linking, thus changing the way we all experience the internet, has been reduced by the verdict.

Additional note: There have also been lawsuits about the legality of deep links in the USA. More information on the lawsuit between Ticketmaster and Microsoft can be found here, and about the lawsuit between Ticketmaster and here!




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