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NY Times: Legality of ‘Deep Linking’ Remains Deeply Complicated

“When a federal judge issued a decision last week in a case
involving “deep linking,” many reports suggested that the
controversial Internet practice was now unambiguously legal. But
the story is more complex than that. In fact, deep linking — the
practice of linking to a page deep inside another Web site,
bypassing its home page — still appears to be in legal
limbo….”

“Also, Judge Hupp allowed a few claims that attack deep linking
to proceed. For example, he allowed the passing-off and
reverse-passing-off claims to remain, as well as the interference
claim. And although he dismissed the breach of contract claim, he
granted Ticketmaster permission to file an amended complaint with
facts showing that its “terms and conditions” created an
enforceable contract, seen and agreed to by Tickets.com. A lawyer
for Ticketmaster said the company will file an amended complaint
shortly that “we believe will satisfy the court’s
requirements.”

“Indeed, it can fairly be said that Judge Hupp left the door
open for a link-averse Web operator to ban linking via a contract
that a Web surfer is forced to agree to before being allowed to
enter a site. He implied that those who deep link in violation of
this conspicuous and assented to “agreement” would have a potential
breach of contract problem on their hands.

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