Captain Copyright and the Case of the Critical Link

My weekly Law Bytes column (Toronto Star version, homepage version) examines the linking issues associated with Captain Copyright. While the linking policy has gone through several edits, the column argues that it is doubtful that any version  is actually enforceable.  First, it is by no means certain that the terms and conditions associated with the site constitute a binding contract. 

Even if it could be enforced, the specific linking provisions are unlikely to withstand legal scrutiny.  Several courts in both Canada and the United States have addressed the legal issues associated with linking, with most concluding that links do not raise any copyright concerns. In the case of Captain Copyright, it is irrelevant whether the citation comes from a critical blogger or a supportive school board – permission is not needed to link on the Internet and it cannot be denied in legal terms and conditions. 

When Access Copyright chose to freely display its content on the World Wide Web, it surrendered the right to restrict who might link to the site or comment on it. That would be true of any organization, but the principle should resonate particularly strongly with Access Copyright, given that it is a copyright collective whose members rely upon freedom of speech for their livelihoods.  If Captain Copyright teaches us anything, it is that he should be powerful enough to withstand a little criticism.


  1. Kevin S. Brady says:

    I have always been puzzled by the controversy surrounding linking. How did this become a copyright issue in the first place? I don’t see linking (or deep-linking) as an invasion of any of the half-dozen ownership rights created under copyright (at least in the U.S.). Nothing is being appropriated.

    At most, a link accompanied with certain adverse language might rise to some level of defamatory or false light conduct. But that language is independent of the link itself. It is the language that makes such a case, and not the link. The owner of the targeted website still bears the burden of showing that there exists some tortious conduct. Even so, Captain Copyright will likely be subject to a good dose of protected parody or commentary speech. A link is just a link, and as noted, it is like a directory listing — merely pointing one in the right direction.

  2. cobolhacker says:

    I’m just waiting for the day that the courts deem the click-thru contract as non-binding and unenforceable.

    I’ve often wondered why companies even bother with such conditions anyway. Not only are they probably unenforcable, they are largely unnecessary if people actually bothered to use their brains. If the content in question is that prejudicial, why even hang it out there in the first place?

    If some blogger wants to be critical of the content, let him go at it. It’s still free linkage and unless he’s really being libellous, I don’t see what else there is to be done, except maybe politely asking him to stop.

    And if the bloggers find out that the company was up to no good, and expose it, the company deserves everything it gets and a “terms of service” click-thru will offer no protection.

  3. Christo de Klerk says:

    linking affects
    As I understand it, the argument critical to deep linking has to do with effect, the fourth criteria of Fair Use. Linking to a page inside a web site ‘past’ the ‘front page’ can rob the web publisher of revenue that would have been generated if the user hadn’t skipped past the front page and all the ads on it to the content linked to.

    It really is a rediculous argument that I think stems from an unhelpful view of how web sites relate – the analogy that web pages are like pages in books fails to account for the relational aspect of content. Links to web content affect the content – raising it in search engines, describing it to search engines, or adding to it, like trackbacks on blogs do.

  4. Linking without using
    I wonder what entails “use of the site” sufficient to indicate implied acceptance of the terms and conditions?

    Presumably the author of a webpage could include a link to another site, without ever visiting that site; without ever “using” any of the content or seeing, much less agreeing to, the “terms and conditions”.

    It is hard to see how the content of the site linked to could regulate such linking.

  5. position is linked to p2p fight
    The very idea of linking being within the purview of copyright is very important concept being pushed by owners of content, because, I think, of the issue of p2p programs.

    The issue of giving links to websites is probably of secondary importance, but if they didn’t push the idea that web site linking is a violation of copyright, it would strongly undermine the case that other types of linking (magnet links, ed2k links, .torrent files) could be illegal.
    The way p2p programs’ URIs are used is technically not much different from how web links work.

    Realizing this, they don’t want to give away any part of their position on web site links, as this would undermine their fight against p2p.

    Reading the definition of a URI makes it clear that it is analoguous to citation (A way, usually unique, of identifying a resource). A URI is a concept unto itself, and not limited to use on the internet.

    wouldn’t it be ridiculous to outlaw bibliographies?

  6. Mike Pelletier says:

    Captain Copyright sucks.

  7. Anonymous says:

    Automatically stripping the link from the previous post robbed it of some of its punchiness. What can I say, it worked in “Preview”.

  8. Brian Foley says:

    Colour me ignorant, but isn’t the whole point about copyright and internet distribution not simply about control over substance of material but about owner’s control of how IP is distributed? Isn’t that one of the planks musicians have against new forms of distribution – i.e. I put my music out there in a particular form in which I want it distributed and I never agreed to have it distributed in X, Y or Z fashion.

    If that’s a valid way of thinking about IP and copyright, would the same then not apply to links – i.e. “I have written this on the internet, and I do not wish it to be distributed in a particular fashion, hence I forbid linking to it”.

    Of course, that is all based on the premise that copyright law (which I know little about) actually allows owner-rights over content-netural distribution issues.

  9. Robert Reeson says:

    The CBC has run its course. At a billion dollars a year, the money can be better spent on healthcare and educational. It is a dinasaur….