Apple's deep linking threat is not so stupid

Out-Law News | 04 May 2006 | 2:27 pm | 1 min. read

EDITORIAL: The Register is reporting that Apple's lawyers have threatened a community website because it is linking to one of Apple's own internal service manuals. The site operator seems unfazed; but Apple might have a better case than he thinks.

Richard Kyanka's popular Something Awful site hosts a forum in which a link has been posted to the Apple manual. Apple lawyers told him to remove the manual from his site immediately. The Register reports his reaction: "I replied to Apple and told them basically to screw off because I'm not doing anything illegal."

Kyanka points out that his site doesn't actually host the manual on his site. The host appears to be a third party site. The intention behind posting the link seems laudable: to help fix a problem that people have had with Apple MacBook Pro computers.

Apple's most obvious course of action is to get the operator of the third party site to remove the manual. It is probably working on that. If the manual has been scanned and posted to the internet without permission, it will be infringing copyright. Downloading the PDF – which will happen when Kyanka's readers follow the link – is another instance of infringement. And that's why Kyanka would be wise to remove the link from his own site.

A US court said in 2000 that most deep linking will not amount to copyright infringement. But when linking to material that itself infringes copyright, Apple can make an argument of contributory copyright infringement – i.e. it can argue that Kyanka's site contributes to the infringement of its copyright.

It's the same argument supported by the Supreme Court in the case against Grokster and StreamCast: those running a peer-to-peer service might not host any unlawful MP3 files, but by making it easy to trade infringing files, the music industry has a right to complain.

Similar thinking was applied by a Norwegian court in a ruling against a student whose website linked to MP3 files: the student was fined 100,000 kroner (around £8,000) for helping people to find infringing material.

There are only a few situations where linking causes a problem. Linking to dodgy material is one of them. Another is when the linking is systematic, as with news aggregation or 'scraping' services. But most other objections to deep linking will find little or no support in law.

By Struan Robertson, Editor of OUT-LAW. These are the personal views of the author and do not necessarily represent the views of Pinsent Masons.