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Reader Comments on Mind that link

From: Rick Shera
Having written 30,000+ words on linking and framing under
NZ copyright law for my masters degreee a couple of years
ago, I don't really think that linking per se is much of an
issue in NZ.  IMHO, it is impliedly licensed when someone
puts something on the net.  Of course the implied licence
can be displaced by the website owner by putting a notice
to that effect on their site.  In any case, since there is
technically no copying going on by virtue of the link (a
fact missed in some of the cases that have made it to the
courts worldwide and by many commentators) it is difficult
to argue copyright infringement.  One ends up arguing that
all viewing of website material is copying which may be
technically correct (caching etc vs impermanence arguments)
but is a practical nonsense (implied licence principles
would be sufficent to allow this anyway even if technical
copying is found).

Framing is the same under copyright law but it is easier
for a complainant to get home under passing off/fair
trading principles where the frame often gives the
impression of ownership by the framing site (particularly
where the URL ref in the address box does not change).

You are dead right however about this becoming a major
commercial issue.  One only has to scan the SEC filings in
the US to see the seriousness (read $$ involved) of the
arrangements that are being entered into to cover
linking/co-branding arrangements.

The other important factor to be aware of is that this is
an area where there are significant differences between NZ
and US, the latter having an overlay of first amendment
free speech principles and fair use which is not really
relevant in NZ.  Instead we have very specific and narrow
exceptions under the Copyright Act (eg for libraries).

Rick Shera
MComLaw (Hons)

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