Deep link

Deep link or direct link (심층링크, 직접링크) of hypertext on the Internet means a hyperlink that links to a specific, generally searchable or indexed, piece of Web content on a Website. A home-page link is called a "simple link".

Most Websites are organized hierarchically, with a home page at the top and deeper pages within the site, reached by links on the home page. Businesses often want users to enter their Websites from the home pages, so that they are exposed to advertising messages. A third party can thwart this expectation by so-called deep linking. The term refers to using a hyperlink that takes a user directly to a page other than the top or home page. The link given above is a deep link.

Arguments on the deep linking led to contentious litigations in Korea and abroad. Several lawsuits have involved complaints by proprietors of Webpages against the use of deep links.

In November 2009, the Korea Supreme Court gave a criterion on whether the so-called "deep link" among Internet links falls under reproduction and transmission as prescribed by the Copy Right Act. This case law has been followed by the court in relation to the "inline" (image-source) link.

Key words
hyperlink, deep link, inline link, frame link, Copyright Act, reproduction, forwarding, interactive transmission

Legal issues
Any reproduction (복제/複製) or forwarding (전송/傳送) of an original work without the permission of its author is prohibited by the Copyright Act.

Article 2 subparagraph 14 of the previous Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) provides that the term "reproduction" means a fixing on a tangible object or a remaking into a tangible object by means of printing, photographing, copying, sound or visual recording, or other means.

Subparagraph 9-2 of the same Article provides that the term "forwarding" means providing works, etc. for use so that the members of the public may have access at the time and place of their own choice from among the public transmission, including transmission to be done accordingly.

The so-called deep link or direct link, which is Internet link referring to technique capable of easily moving toward Webpage to which Internet users try to connect, is that a user copies Internet address (URL) and hypertext tag information of works which have been stored in Website server and attaches them to his or her blog board, etc. so that works stored in the above website server can be seen or heard by clicking this. Thus, the above deep link or direct link is just Web position information or path as to works that users try to link on the Internet.

So it gives rise to a question whether deep linking falls into "a fixing on a tangible object or a remaking into a tangible object" as prescribed in the Copyright Act. Also, would it rather be viewed as act of directing or preparing forwarding request of work, than "an act of transmitting or providing works, etc. for use" as provided in the same Article?

See copyright litigations relating to hyperlinking in foreign countries

Facts
A company [Defendant] made and distributed its newsletter to its customers, which had linked a subpage of the Internet news provider [Plaintiff]. Plaintiff filed a lawsuit that Defendant violated the Copyright Act which prohibited the reproduction and transmission of original works without permission of the author.

Seoul High Court held such a deep link did not fall within the copyright protection. So Plaintiff appealed.

Disposition
The appeal is dismissed. The cost of appeal is borne by the plaintiff.

Reasoning
The grounds for appeal are examined as follows:

As to the ground of appeal No. 1
Article 2 subparagraph 14 of the former Copyright Act(wholly amended by Act No. 8101 of Dec. 28, 2006, hereinafter referring to the same) provides that the term "reproduction" means a fixing on a tangible object or a remaking into a tangible object by means of printing, photographing, copying, sound or visual recording, or other means, and subparagraph 9-2 of the same Article provides that the term "forwarding" means providing works, etc. for use so that the members of the public may have access at the time and place of their own choice from among the public transmission, including transmission to be done accordingly. The so-called deep link or direct link, which is internet link referring to technique capable of easily moving toward webpage to which internet users try to connect, is that a user copies internet address (URL) and hypertext tag information of works which have been stored in website server and attaches them to his or her blog board, etc. so that works stored in the above website server can be seen or heard by clicking this. Thus, the above deep link or direct link is just web position information or path as to works that users try to link on internet. Accordingly, it does not fall into "a fixing on a tangible object or a remaking into a tangible object" as prescribed in Article 2 subparagraph 14 of the former Copyright Act. Also, it would rather been viewed as act of directing or preparing forwarding request of work, than "an act of transmitting or providing works, etc. for use" as provided in subparagraph 9-2 of the same Article. Thus, an act of doing the above deep link or direct link does not fall within the reproduction and forwarding provided by the former Copyright Act.

The court below determined that the defendants transmitted the plaintiff's musical work in their own server to internet users and infringed the plaintiff's right to reproduce and forward his musical work, and then reasoned that, although the plaintiff's musical works stored in the website server, etc. operated by the defendant 2 corporation and the defendant 3 corporation were linked by internet users, or the defendant 2 corporation provided internet users with internet address (URL) and hypertext tag information so that they could easily link server held by itself, merely based on the above circumstances, it cannot be deemed that the defendants infringed the plaintiff's right to reproduce or forward musical works, apart from the above infringement, and other evidence produced by the plaintiff is insufficient to find the fact that the defendants have a duty to prevent link to all musical works in advance. Thus, the court below rejected the plaintiff's allegation relating to this. In light of the above legal principle and records, the judgment of the court below is just and does not contain any error of law by misunderstanding the legal principle as to copyright holder's right to reproduce and forward, as alleged by the ground of appeal.

As to the ground of appeal No. 2
In light of the records, it is wrong that although the plaintiff has never explicitly argued that his another right to reproduce and forward "PC pubic performance", "Music Phone" service was infringed, the court below judged this issue. However, once the court below ruled that the defendants' liability cannot be admitted based on reasons as stated in its holdings, the above judgment did not affect assessment of damages in this case. Thus, the judgment of the court below did not contain any error of law that affects the decision such as insufficient deliberation, etc., as argued in the grounds for appeal(according to the records, there is no circumstance to consider that the court below assessed damages of this case by giving much weight in rejection of argument related with "PC public performance" or "Music Phone" service).

Conclusion
Therefore, the Court determines by unanimous opinion of all participating Justices that the plaintiff's appeal shall be dismissed, as set forth in the Disposition.
 * Justice Kim Ji-hyung (Presiding Justice)
 * Justice Yang Seung-tae<br
 * Justice Jeon Soo-ahn
 * Justice Yang Chang-soo (Justice in charge)