For years, I’ve been getting the same question when I get to the hyperlink section of my “Writing for the Wired World” workshop: “Do you need permission to link to somebody else’s content?” I am not a lawyer, but I have read a fair amount on this subject. My understanding is that, with some very narrow exceptions, any content that is freely accessible on the web is fair game for a link.

The issue emerged early in the web’s evolution when some companies were miffed that people were linking to content two or three or more layers deep into their site. This became known as “deep linking.” The people who created those links sometimes got letters from lawyers insisting they were violating copyright if they did not confine their links to the home page, which is where preferred navigation and advertising appeared. The courts dismissed these claims, noting that the “home page” is an arbitrary construct and that all publicly accessible web pages are equal. It’s a good thing the courts found deep linking to be a legal practice; imagine the web if Google could point only to home pages! (Remember, there are exceptions and the issue continues to confront the courts, notably in Denmark. Some excellent coverage of deep links here and here.)

The question today, though, is whether the broad court findings on deep links apply to non-HTML content. Based on search engines’ ability to find Adobe Acrobat PDF files and the various search engines that scour images, audio, and video, it would be easy to assume that all publicly-accessible content is fair game for linking. As one court put it, if you don’t want people to link to it, don’t put it on the web (or at least password-protect access to it). National Public Radio, however, doesn’t see it that way. Until recently, Jared Benedict and Jon Udell maintained an unofficial “This American Life” site that included links to the program’s MP3 files in its RSS feed. NPR sent what was characterized as a polite letter that nevertheless threatened legal action if the links were not removed. While the show changed the format of its online files to MP3, its intent is that they be listened to on the site and not retrieved as a podcast. (See? There is a difference between online audio and podcasts!)

Udell and Benedict complied. Benedict noted:

While I am confident that I am breaking no law, I am respecting TAL’s wishes by taking down the podcast and archive page which points to their MP3’s. This American Life has decided to take the bizarre approach to Digital Restrictions Management (DRM) by asking nicely—which I suppose is better than using some Windows only Microsoft Media Player DRM or Sony Rootkit DRM.

Udell had posted the letter they received on his blog but, at the request of WBEZ, he pulled that down, too, noting, “however impractical TAL’s current policy may be, I respect the show’s integrity and idealism, and I hope the podcasting question will get resolved one of these days.”

David Berlind’s coverage of the incident is here. Berlind concludes:

Context really doesn’t matter.  If the URL exists, you must acquit.  Otherwise, if you’re putting MP3 files on the Web and you don’t want someone pointing to them from the contexts of their choice, then, instead of sending takedown notices to that someone, take down the content itself.  That way, nobody will point to it.

I couldn’t agree more.