Deep Linking Legal in Germany

BlueWonder writes "German news site Heise Online reports a recent decision of the Bundesgerichtshof, the highest court in Germany: Deep linking is not illegal. Newspaper company Verlagsgruppe Handelsblatt had sued the news search engine Paperboy for deep linking to their articles. According to the Bundesgerichtshof, the public interest in a well-working Internet takes precedence over the commercial interests of the newspaper company, even if the advertizing of the company is bypassed. The Bundesgerichtshof has clarified that users can access any page if they know the URL, and deep linking is just a technical simplification for entering the URL manually. (Warning: links go to German sites - use the fish...)"

Comments

Wrong dept.

[BgJonson79]

Shouldn't it be from the-no-shit-dept. ?

Its Nice to see that someone has some sense

[Crashmarik]

It's good to see that theres at least one state in the world that isn't rushing to welfare programs for lawyers with pointless laws.

Imagine if they had ruled deep linking was illegal ? think of the enforcement nightmare.

They're nuts. Deep Linking = GREAT traffic source

[Boss, Pointy Haired]

I've recently started using a news aggregator that takes RSS feeds from various sources and provides deep links straight to the article pages of their sites.

I find myself visiting pages on the Register, The Motley Fool, and loads of other websites that I would never have visited otherwise.

The publishers of these feeds know that, they know that it brings traffic and if they didn't want to do it they could pull the feed and prevent deep linking using any of various hacks.

It is up to them as a publisher to use deep linking to their advantage and stop being so anal about it.

Why all the fuss?

[Stackster]

If a site doesn't want anyone to "deep link" to them, why not just check the HTTP_REFERER HTTP header, and send those requests that come frome a "deep link" (anything outside their own site, probably) to the front page?
Sure, you can set your own referer header and fool such things, but "ordinary users" wouldn't bother doing that.

(Or do Big Evil Compaines always try to take legal action first, and if that fails, go for a technical solution?)

Re:Why all the fuss?

[janda]

Well, most larger companies hire their own laywers, they might as well keep them busy...

Seriously, I think this is (mostly) another example of the marketing department doing the design work, and not understanding the technology. Then, when they find out that people can bypass their ads, they talk to the programmers.

The programmers tell them that this is the way the protocol is supposed to work, so there's no real way around it without recoding everything to use cookies, registration, headers, and other stuff, which will make the marketing department look bad for not giving good requirements in the first place.

It will make the marketing department look even worse if the programmers said it should be done with cookies, headers, etc and the marketing department did the "we don't have time" routine.

So, drag them to court first.

Note: You can substitute any department/person for "marketing" here, I'm just using them as an example from personal experience.

Re:Why all the fuss?

[SCY.tSCc.]

If a site doesn't want anyone to "deep link" to them, why not just check the HTTP_REFERER HTTP header, and send those requests that come frome a "deep link"

Unfortunally, that approach is inherently flawed. Some proxies remove the HTTP_REFERER header or change it to something else (ever seen those XXX_REFERER removed by SoftwareXYZ in your logs?).

In addition, caches (built into your browser or proxy) in general might get confused by different content that comes with the same URL because it depends upon the HTTP_REFERER header.

bye,
Settel

Re:Why all the fuss?

[JimDabell]

Some proxies remove the HTTP_REFERER header or change it to something else (ever seen those XXX_REFERER removed by SoftwareXYZ in your logs?).

As far as I am aware, no software spoofs the Referer header by changing it to another URI. So simply block the people whose referring URI begins with 'http://' and does not come from your domain. Log the ones you block, and whenever any new ones come up, send an email to the webmaster. If a new "privacy enhancer" or whatever appears that does spoof the referrer with a false URI, simply exempt those from your checks.

Remember, you aren't aiming to catch everybody who may possibly come from elsewhere, you are just making it unlikely anyone will deep-link to you.

In addition, caches (built into your browser or proxy) in general might get confused by different content that comes with the same URL because it depends upon the HTTP_REFERER header.

Not if you send a Vary header. Anything that gets confused by multiple objects available at the same URI when a Vary header is present is deeply broken, and will break in lots of different ways on lots of different sites.

Re:Why all the fuss?

[i_really_dont_care]

There are a bunch of other possibilities to avoid "deep linking", for example by using dynamic content. I assume, they are already using cookies or session IDs to track their users. The same technology can be used to assure that a user has to view the main page before a subpage can be shown.

It's also important to note that the ruling was about deep linking "per se" and not about accessing content that is protected. The press text reads:

"Ein Berechtigter, der ein urheberrechtlich geschütztes Werk ohne technische Schutzmaßnahmen im Internet öffentlich zugänglich mache, ermögliche dadurch bereits selbst die Nutzungen [...]."

Which means (sorry for my bad English, emphasis mine):

"A benificiary who publicy publishes a copyrighted work without technical protection on the Internet, thereby already permits its use [...].

This makes perfect sense for me.

Please consider

[BlueTrin]

arresting Google, they provide deep-linking and even CACHE !!!

Oh wait ... you are too lazy to put a robots.txt in your root ?

One noteworthy point not mentioned in the /. story

[mkweise]

...is that the rulin states that if the owner of a web site wants to prevent deep linking, it may feel free to use technical measures to prevent it. (That could be as simple as using the referrer= tag.) It goes on to state that circumventing technical measures designed to prevent deep-linking very well may be illegal (and that they'd rule on that if and when it comes up.)

That doesn't solve all problems.

[Krapangor]

You might now think that Germany is the land of the sane and bright, but this isn't true.
In fact in some German states ISP are required to use censorship filters to filter content which is showing disrespect to human dignity like infamous rotten or neo nazi propaganda.
Indeed taking the new decision of congress to ensure free, uncensored internet access everywhere on the world, then you'll see very soon that Germany will be besides North Korea, China, Vietman, Iran and Lybia on the list of offenders.
Germany has a long list of incidents of restricting the peoples right to access information and entertainment by claiming to protect youth and society. So sales of Doom, Quake and Command and Conquer 3 are extremely restricted like hardcore bukkakke porn. Furthermore you can't get Hitler's "Main Kampf" or plans for explosives of weapons in stores.
This is a severe restriction of free information access. Free is free and information is information. That doesn't imply a qualitative measurement. So, in a truely free society people would have free access to images of severed head, torn inards and mindless racist propaganda, too.

I think that's a very bad direction for the German society. The public rights are slowly getting more and restricted. In this picture it fits that the limits for consumed alcohol before driving are steadly lowered, speed limits are spreading like salmonella, the weapon laws are more and more restricted and smoking is made illegal in more and more places.

Honestly, I don't know where this leads to. I'm just scared.

Re:That doesn't solve all problems.

[BlueTrin]

Furthermore you can't get Hitler's "Main Kampf" or plans for explosives of weapons in stores.

I won't complain for these ones =)

Re:That doesn't solve all problems.

[mkweise]

You might now think that Germany is the land of the sane and bright, but this isn't true.
In fact in some German states ISP are required to use censorship filters to filter content which is showing disrespect to human dignity like infamous rotten [rotten.com] or neo nazi propaganda
Indeed taking the new decision of congress to ensure free, uncensored internet access everywhere on the world, then you'll see very soon that Germany will be besides North Korea, China, Vietman, Iran and Lybia on the list of offenders.

As would the United States, if you look at the matter objectively. Please understand that many Germans feel as strongly about neo nazi propaganda as Americans do about kiddie porn...or certain decryption tools, for that matter.

Re:That doesn't solve all problems.

[Anonymous Coward]

That's not correct!

> So sales of Doom, Quake and Command
> and Conquer 3 are extremely restricted

You must be 18 years old or older, thats all.

> In fact in some German states ISP are required
> to use censorship filters to filter content
> which is showing disrespect to human dignity
> like infamous rotten [rotten.com] or neo nazi
> propaganda

There are 17 German states, contents are only filtert in North Rhine-Westphalia. (I think that about 10 - 20 sites are filtert.)

There are many people and clubs like CCC against filtering, because it is AGAINST THE GERMAN LAW.

But it is allowed to use other DNS outside NRW.

> Furthermore you can't get Hitler's "Main Kampf"

You can buy the annotated version. But I don't like it too, that you can't read the original book if you want. (The name of the book is "Mein Kampf")

> or plans for explosives of weapons in stores

Oh, I think that's a good law.

Re:That doesn't solve all problems.

[Jadrano]

In a way, I understand the US position that freedom of speech should not be restricted in any way. Many people of the left are sceptical about the fight against extremist right-wing propaganda - right-wing extremism, which few people like, can be used as an excuse to introduced repressive measures that will also be used against the left. As soon as freedom of speech is restricted, it's a dangerous slope.

However, I do think it is right that neo-Nazi propaganda is illegal in European countries - not just in Germany, but they have the strictest laws. Even nationalist and radical right-wing propaganda should be legal. In the case of texts that say that the policies of the Nazis who murdered millions of people and that something similar should be started again, I find it, however, right that an exception is made. Among those most active against neo-Nazi and antisemitic websites are organisations of children of survivers of the holocaust, and I find their concerns must be taken seriously (even if they sometimes go too far).

What I also find important in that context is that, in contrast to many laws that have been introduced recently in many countries for the 'war against terror', the restriction of Nazi propaganda is not a new tendency towards more repression, Nazi propaganda has been illegal since the defeat of the Nazis in WW II, and it was a historical necessity (the Americans as one of the occupying powers who liberated Europe from the Nazis hardly objected this ban then). It is important that the ban on Nazi propaganda isn't used as a starting point for more restrictions on the freedom of expression, but as long as it remains an exception for an exceptional ideology that caused such enormous suffering and deaths, there are good reasons to keep it.

The other examples are completely unrelated, and I don't find them convincing. I don't know any other country except Germany where on most parts of highways, there isn't any speed limit, at all. If some more are introduced, this is necessary to prevent accidents and save lives, and the same goes for alcohol limits for drivers. Germany is in no way leading there, in many countries, there are currently attempts to diminish accidents with such measures.
As far as smoking is concerned, there are, indeed, more restrictions than there used to be, but again this is an international development for which there are health reasons, and smoking is much less restricted in Germany than in places like California, New York or Turkmenistan (and although tobacco taxes are rised, cigarettes are still cheaper in Germany than in Great Britain, Scandinavian countries and the US).

Thank you

[Vryl]

This is the only sane argument about this. Laws or court cases against deep linking are moronic. It is a public network. You have advertised an address, and you knew what that meant when you did it.

You are not being co-erced into putting content on the network, and the consequences of putting up content are obvious to all.

Some interesting and similiar cases:

[BlueTrin]

Deep linking illegal under EU law, By Andy McCue, Computing [26-01-2001]

Danish Court Rules Deep Linking Illegal

Some examples of companies who forbid deep linking (the last link is full of stupid examples, some websites which would get a great benefit for their popularity from deep linking

An english link

[Anonymous Coward]

I saw the notice at Links&Law.com.

Re:They're nuts. Deep Linking=GREAT traffic source

[SCY.tSCc.]

Deep linking almost always generates only one hit/page impression/whatever you like to call it per user while a visitor that starts out on the homepage is likely to generate more than two clicks.

Remember, most sites use banner ads as a way to earn money and every hit means more money to them. Guess why so many news site just have a teaser of their articles on the homepage? Yes, to make you click on that link that provides you the full story and generates them another hit.

bye,
Settel

Re:They're nuts. Deep Linking=GREAT traffic source

[Boss, Pointy Haired]

But that one click is one more click than they would have got.

The whole point is that deep linking drives somebody to your site that would never have come by were it not for that deep link - i.e. you do not have the opportunity to generate the 2 clicks that you talk about.

You have the opportunity on the end of that one click to capitalise on it and entice the visitor into the rest of your site.

And in Denmark

[Snaller]

...it was ruled illegal. Because they said, because of EU rules. Which of the countries will have to change?

Search engines?

[BenjyD]

Wouldn't preventing deep-linking destroy the use of search engines? What would Google do - provide a link to the front page and directions?

"On the main page, scroll down half way and click on the small link on the right hand side. Close the resulting pop-up and scroll down to the bottom of the next page. Follow the second link from the right and you will find the content you are looking for."

Highest Court

[Hank Chinaski]

In fact the Bundesgerichtshof is not really the highest court in Germany. It can be overruled by the Bundesverfassungsgericht (www.bverfge.de) which is similiar to the US supreme court i guess.

Whatever happened to

[blair1q]

Referrer authorization?

Learn to use the Internet. It's cheaper than learning to use the Courts.

Missing the point?

[smokeslikeapoet]

Is it just me or are companies that discourage deep linking missing the whole point of the internet. Most web sites have severely limited and dumb search capabilities on their own or no search feature at all. Making me spend more than a minute searching on your website is just going to piss me off. The whole purpose of a website is for people to visit it and glean information from it. Preventing people from doing this is wasted capital. It's kinda like having 10 or 12 entrances to a shopping mall, but only allowing customers to use the main entrance.

Re:Please consider Robots.txt doesn't always work

[bwt]

If you have a robots.txt entry and somebody ignores it, then you should have a good case to sue them. If you don't have a robots.txt entry and somebody relies on it, you should have no case to sue.

Hopefully, the legal standard will be that when you choose a particular technolgy to disseminate your works, that the documents that define that technology become legally binding. In other words, the law should reinforce the technology.

This attitude isn't that unusual for some websites

[Ethelred Unraed]

They're nuts. Deep Linking = GREAT traffic source

The attitude of Handelsblatt unfortunately does not seem to be that unusual, at least not in Germany. I remember having to work with a large marketing and design agency on a web project (the small agency I was working for was doing the website, the other agency -- the biggest in our area -- did the print marketing and was trying to also lecture us on how to do the site).

First they criticized the fact that we had a full navigation on every page of the site -- in their view people should page through the site like a magazine.

Secondly they wanted to force people to start at the homepage and work from there.

They apparently thought of websites as being literally just a form of magazine or book -- you start at the beginning and page through to the end. I remember arguing with them vociferously that that was wrong, since it threw away all the advantages of the Web (I said it was akin to putting a radio ad on TV with no video) and also explained the principle of deep linking -- to which they reacted with horror and practically demanded we block deep linking, by lawsuits if necessary (WTF?).

Given that the client's site was for a major German utility company with loads of info for customers, deep linking made all the sense in the world -- much more so than many other sites (since news sites, etc. would link directly to pages with promotions and so on).

In the end we carried the day by arguing our position with the client's marketing director (who seemed to "get it" in general, even if he had some bizarre suggestions, like doing the entire ~1000-page site in Flash -- thank God we didn't do that).

OTOH that other agency was also pretty damned clueless about a lot of other things -- proof that large agencies often aren't large because of the quality of their work, but just because the PHBs have all the right connections. *sigh*

Cheers,

Ethelred

Educational tool

[Yanna]

How can you get to know your enemy if you are not allowed to access their content?

How can adults keep the memory of the horror alive if they are not allowed to read it and discuss it and above all, use their critical thinking capabilities?

If someone tells me that something is "bad", I feel compelled to go and check by myself. If I am told that something is bad, but I am not allowed to validate that information, then I tend to grow suspicious.

While I wouldn't recommend that this book is allowed to any person younger than 18 without parental/ adult supervision, I would probably make it mandatory reading in every school (particularly in the last year of high school). I would make it a mandatory alert course on the evils of propaganda and the results of racism.

Informed adults make wiser and more matured decissions than people who are ruled by a baby sitter goverment.

Re:germany rules

[flippah]

It isnt all that great here in good old germany. Sometimes we are lucky and have a judge who knows the matter.

But on the other hand, software patents are going to come etc.

There is still enough to be done here.

German Legal System

[Moritz Moeller - Her]

The BGH is the highest court in Civil matters. It is the end of any legal argument in civil matters.

There is also the BVerfG, which is the court, who decides about Constitutional and basic rights issues with final authority. But unless the Handelsgruppe can show that the current judgement by the BGH violated their constitutional rights in a serious way, the BVerfG will never have to decide this case.

The American Supreme Court is a combination of the two. Remember the US Constitution was one of the first real constitutions, so the power to decide Constitutional cases was just put in the hands of the highest normal court.

Problems of German society?

[chl]

You might now think that Germany is the land of the sane and bright, but this isn't true.

As a German, I cannot really disagree with that. Still, I find Germany a nice country to live in because enough of us are sane and/or bright.

In fact in some German states ISP are required to use censorship filters to filter content which is showing disrespect to human dignity like infamous rotten or neo nazi propaganda. [...] Germany has a long list of incidents of restricting the peoples right to access information and entertainment by claiming to protect youth and society.

Historically, some forms of hate speech are forbidden out of a desire not to repeat certain experiences that happened in the 1930s and 1940s. Our allied-approved constitution still says "There is no censorship". Of course it was very silly that KISS have a different logo in Germany because it is forbidden to use the runic SS script, which is also a symbol for the SS murderers.

So sales of Doom, Quake and Command and Conquer 3 are extremely restricted like hardcore bukkakke porn.

They may not be advertised nor sold to minors. This is hardly extreme. It is also practically useless in stopping minors to get such stuff.

The public rights are slowly getting more and restricted. In this picture it fits that the limits for consumed alcohol before driving are steadly lowered, speed limits are spreading like salmonella, the weapon laws are more and more restricted and smoking is made illegal in more and more places.

How are drunk driving and poisoning people public rights? There still is no general speed limit on the motorways and I have no sympathy for people who complain about getting caught for speeding.

I agree, however, with your sentiments for the new weapon law. It is practically impossible to legally own a firearm for self defense in Germany. I can only guess that the public allows this because most people do not feel threatened enough by criminals that they feel in need of a gun. And our violent crime rate is relatively low.

chl