Intellectual Property Law Internet Law IT Law Computer Law

I was wondering whether I should use a different title for this post. Something more like “how to overturn technological realities upside down by the law” but it is probably too pretentious and far too long. Ad rem. What is the problem? The problem is whether the act consisting of giving links within a website may be subject to legal liability (criminal, civil, etc.). Someone who studied history and specification of HTML for a while will probably smile and nag his or her head in the negative. Ok, so let’s think about couple of problems. First question: whether adding a link to a particular source may be subject to legal liability? Even if a certain resource contains illegal content, for example: materials containing child pornography. The second question: whether you can claim for the legal ban of the use of links, for example, whether someone can prohibit the use/indication of a link to my page. There are other questions and I have more examples, but these two seem most important to me for now. The issue raised in my second question appeared in the U.S. in two recent interesting cases.

In Jones Day v. BlockShopper.com, 1:2008 cv04572 (ND Ill.. August 12, 2008), a large law firm (and I was afraid to give up the name ;) - Jones Day has sued BlockShopper.com for trademark infringement by publishing links and information about two flats bought by lawyers working for Jones Day. The petition does not mention any copyright infringement claims. It included trade mark ifringement claims based on 15 U.S.C. § 1114 and § 1125(a)

Defendants’ use of the Jones Day Marks, in connection with their real estate advertisement scheme, is likely to deceive and cause confusion and mistake among customers as to the source or origin of the services provided or offered for sale by Defendants and the affiliation of Jones Day with those services and/or the sponsorship or endorsement of those services by Jones Day.

and false designation of origin claim based on 15 U.S.C. § 1125(a)

Defendants’ use of the Jones Day Marks, in connection with their real estate advertisement scheme, is likely to deceive and cause confusion among consumers as to the source of origin of the services offered by Defendants and the sponsorship or endorsement of those services by Jones Day.

and trade mark dilution claim based on 15 U.S.C. § 1125(c)

Defendants’ use of the Jones Day Marks is disparaging the distinctiveness of the Jones Day Marks.

In Reisinger v. Perez et. al, 2:2008 cv00708 ((EDWis. August 20, 2008), the City of Sheboygan, requested from Jennifer Reisinger to remove the link to the official site of the Police - www.sheboyganpolice.com. Initially, being impressed by the cease and desist letter, PDF, 52 KB, she has received, Mrs. Reisinger dediced to remove the aformentioned link. But after some time she decided to sue the city (in the person of Mayor Perez) for violation of freedom of speech granted her under the First Amendment to the Constitution in relation to the provisions of 42 U.S.C § 1983. Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Of course, the question of liability for the use of links is a little bit more complicated if you use trade marks in the content of the link (for example: Do not buy Pepsi), or link’s content is potentially subject of libel (for example: he is really an id*ot), or when the content would include works protected by copyright. However, as you can see in the accompanying examples, the problem does not affect the process of linking to a resource, but only the relationship of resources and content between tags <A HREF=”"> and </A> and in my humble opinion that’s completely different issue.

Update on September 23, 2008.
I forgot to add a link to www.linksandlaw.com website.

Eric Goldman wrote about the judgment in Saadi v. Maroun, 2008 WL 4194824 (MD Fla.. Sept. 9, 2008), while pointing to the “protected” PDF file with complaints in the aformentioned case. Someone tried to “protect/hide” personal data of one of the parties. I suggest to perform a simple action: select and copy the black section and paste it into any text file. It’s a post I wrote a propos of certain comments which appeared on Piotr Waglowski website.

There is an ongoing discussion at Piotr Waglowski’s website within the post titled “GIODO: first name, surname, photo, school, class and graduation year - are not personal data…” regarding recent decision of the Inspector General for the Protection of Personal Data (GIODO) of

September 3, (the date illegible on the scan I own), with a signature (again illegible) DOLiS/DEC 515/08/22857

However, I would like to write about deleting parties’ personal data from judgments decided during administrative proceedings. Just for example, see judgment of the Polish Supreme Administrative Court of 20 November 2007, act signature II GSK 138/07 (in Polish language).

The Supreme Administrative Court composed of the President: Judge Jan Kacprzak, after hearings of 20 November 2007, during non public session, in the Chamber of Commerce, on the motion of P. P. L. “K.” J. K. S. j. from L. regarding the separate division of a cassation complaint brought by R. B. G. with headquaters in F. an S., A. against the judgement of the District Administrative Court in W. of 7 September 2006, act signature VI SA/Wa 557/06 on the complaints of P. P. L. “K.” J. K. S. j. and R. B. G. with headquaters in F. an S., regarding the decision of the Polish Patent Office of November [...] 2005, No [...] on the invalidation proceedings of the right of protection of a trade mark, decides: to reject the motion.

So far so good and completely anonymously right? And I know… this text is badly translated and very complicated for non-Polish speaking readers and lawyers. Anyway, to have the story linked somehow I suggest you to visit the website of the Polish Patent Office. First, go under the “Press” link, where PPO, in accordance with a statutory license (or not), in the context of the current publications on industrial property law issues appearing in newspapers and web portals has made available neat news compilation of 12 September 2008, PDF file, which reads:

GAZETA PRAWNA, 12.09.2008, p. 9
“Even the renowned trade mark may be invalidated” (more…); author Joanna Barańska.
The reputation of the trade mark is irrelevant to the invalidation proceedings - a case of invalidation proceedings of the international trade mark registration of Red Bull sign in class 30 - for ice cream, confectionery products, etc. (act signature II, GSK 138/07).

I added the link to Gazeta Prawna’s article for the convenience of my respectable readers. With regard to personal data I recommend you to check the trademark database of Polish Patent Office and to perform a search with the fololowing criteria used in the advanced search options (TLP ZawWyr ‘ “Red” and “bull”‘) AND (NIC ZawWyr’30′).

Applicant/owner: Red Bull GmbH, Fuschl am See, AT
Plenipotentiary: Drzewiecki, Tomaszek & Wspólnicy Spółka Jawna Jarosz Wojciech, Warszawa, PL