Is Linking Always Legal?

Jean-Pierre Bazinet, a 20-year-old film buff and financial consultant in Ottawa, would seem to be a movie studio's best friend. He runs a Web site called Movie-List that is a collection of links to over 900 movie trailers scattered across the Internet, making it easier to find what are essentially commercials for films.

But late last month, Bazinet removed the links to all trailers for movies from Universal Pictures. Lawyers from the studio had sent letters and e-mail objecting to his linking to Universal trailers without permission.

"I don't feel like taking them to court over it," Bazinet said. "I don't have the money or the power. A big movie studio is a little threatening."

Unfortunately for Bazinet, the legal status of hyperlinking on the World Wide Web is unsettled, say some cyberspace law experts. Especially controversial is the use of so-called "deep" links, which point directly to Web pages or other content within another site, possibly bypassing advertising-rich home pages or other identifying pages.

Until the courts provide clear guidelines, the experts say, powerful intellectual property owners like movie studios will fill the legal vacuum with their untested assumption that deep linking is illegal.

Linking may be the Web's most distinguishing feature, but the law on linking "is up in the air," said Jeffrey R. Kuester, a lawyer who handles many Internet-related cases at Thomas, Kayden, Horstemeyer & Risley, an Atlanta law firm.

There are no court opinions in the United States that directly address the subject, he said, and even the legal tea leaves are confusing.

Copyright and 'Caching'

Consider the act of 'browsing' on the Internet. Typically, when looking for information in cyberspace, a user browses many sites, perusing their contents in order to find the information sought. Ironically, under the current copyright regime, this act is, itself, a copyright infringement.

This is a result of the implementation of the technology itself. When a user wants to view a particular web page, the browser sends a request out over the Internet to the appropriate web server for a file called an HTML file. The web server sends a copy of the file back to the browser. The browser interprets and displays on screen the text and graphics of the web document, according to the instructions contained in the HTML file. The HTML file itself contains the text for the document, but the graphics files, being much larger, are kept as separate files on the server, and are called up individually by the browser. The end result produced on the user's screen by the browser software, combining text, layout, and images, constitutes a web page.

In order to expedite this process, the technology implements certain short cuts known as 'caching'. The cache in a browser has important copyright implications. The browser caches (stores) copies of the text and images of visited web pages. These are stored on the local server as well as on the hard drive of the user's computer. The purpose of caching is to improve access to web pages.

The time it takes for an entire web page to reach the user depends on the information-carrying capacity (the "bandwidth") of the Internet connection between the web server and the user's computer. The vast amount of information being transmitted can create bottlenecks that will impede the progress of this information. Caching the graphics from previous transmissions, however, speeds up this process tremendously, thereby alleviating much of the congestion at bottlenecks.

Caching, however, has serious legal implications. This process means that viewing a web page necessarily involves making a copy of it in the memory of the client computer. At the very minimum, there must be a copy of the information in the computer's Random Access Memory (RAM), otherwise the client software would be unable to interpret and display the web page.

Ethical Dilemma of Online Gambling

1) Online Gambling Further Confuses the Issue of Legality - Online gambling blurs the line even further between legal and illegal gambling. Confusion reigns from state to state when it comes to gambling. 48 states have some form of legalized gambling—including lotteries, race tracks and casino games, but little consistency exists in gambling laws.

Consider that North Carolina has no legal state lottery, but each year thousands of North Carolinians cross the state line to Virginia to wager on Powerball. Consider that many states (such as North Carolina and Connecticut) have outlawed casino gambling, but then have made them legal on reservations. In fact, Foxwoods—the largest casino in the world—was built on the reservation of the Mashantucket Pequot Tribal Nation. Additionally, consider the inconsistency of gambling laws in New York where betting with a bookie is not illegal, but bookmaking itself is.

2) Online Gambling Breeds Addiction - Online gambling opens a giant can of worms, in that it gives gambling access to millions of people who otherwise would not have access. One of the logical conclusions of having more gamblers is having more gambling addicts.

3) Online Gambling Promotes Fraud and Cheating - Critics claim that online gambling sites have already become a haven for hackers and con men. Most internet gamblers purchase credit online through the use of their credit cards. Skilled hackers would have mountains of credit card numbers to illegally charge to.

Another dilemma to online gambling is that it makes cheating easier. While cheating obviously constitutes a breach in ethics, it also can cost casinos millions. Casinos have thousands of cameras to monitor cheating onsite, however it is almost impossible to monitor a player as he bets out of his home.

Online Gambling

A woman who gambled away more than $70,000 on the Net and then sued major credit card firms for allowing the transactions soon will get her day in court.

Cynthia Haines admits that she bet the large stake and lost it to more than 50 cybercasinos, which she accessed from her home in California--a state where those types of wagers are illegal.

But after her credit issuer, Providian National Bank, took her to court over unpaid bills, Haines filed a countersuit against the bank and Visa and MasterCard, as first reported by CNET News.com.

As early as today, the state Superior Court in Marin County, California, could set a trial date for the case. If the judge ultimately finds in favor of Haines, the outcome carries wide implications for the burgeoning Net gambling sector.

Online gambling has been a contentious issue in the United States, where some want to ban it, while others say it should be regulated as it is in parts of Australia. The federal Wire Act clearly prohibits sending wagers over phone lines, but each state is placing different odds on the legality of online gambling. New York and Missouri have gone after online wager houses based outside their territories, while others have yet to step into these murky legal waters. Although Haines's lawyers said she doesn't admit to breaking the law, their argument is this: Credit card companies are engaging in unfair business practices and aiding and abetting a crime by giving online wager houses merchant accounts to process bets for customers who live where the activity is outlawed.

Not only could Haines be excused from her debt, but the lawsuit seeks a permanent injunction to prohibit credit card firms from serving Net gambling houses. Credit firms typically get a 2- to 5-percent cut from purchases made using their cards.

"Visa and MasterCard know that their credit cards are being used for illegal online gambling, are making money off of it, and have done nothing to stop it," said Ira Rothken, Haines's lead attorney.

His rationale is that "they can't sue someone else for an unlawful act if they also committed unlawful act."

MasterCard declined to comment, and a Visa spokesperson wasn't immediately available. But in January, Judge William McGivern rejected the firms' motion to dismiss the case, stating that: "If the court were to dismiss this action…it would deprive the public a means of addressing alleged violations of the law and fundamental policy."

In about a month, sources say Sen. Jon Kyl (R-Arizona) will revive his Internet Gambling Prohibition Act, which aims to eliminate most online gambling by hitting Net users with a $500 fine and three months in prison each time they rolled the dice online. Cybercasino operators would face up to $20,000 in fines and up to four years in prison. However, some legal experts say Net gambling will thrive despite the Haines case and U.S. lawmakers' attempts to eliminate it.

"Her case does hit a real pressure point with credit card companies. If she wins, the boys at CyberCash are going to be very happy, because people will just migrate from credit cards to using 'e-cash,' which is untraceable," said Philip McGuigan, an attorney at Gordon & Glickson who specializes in Net gambling.

"But is this case going to stop Internet gambling? No," he added. "Nothing will." In Haines's case, the court may simply find that she has to bear the brunt for her bills, McGuigan noted.

Her attorney would rather see Visa, MasterCard, and Providian National Bank eat the debt. "My client has some responsibility," Rothken said. "But this case is about Visa and MasterCard encouraging illegal activity in California and profiting from it."