A recent dispute in Wisconsin has raised an issue I thought long-dead: whether permission is required to link to a Web site. Jennifer Reisinger, a resident of Sheboygan, Wisconsin, runs a Web design business and is also a political gadfly – she set up a Web site that seeks to have the mayor of Sheboygan, Juan Perez, recalled. Her Web design site linked (and still does) to Sheboygan’s police department’s site. [The Sheboygan police need a new Webmaster; it's just not cool to have a site titled "New Front Page 1," and FrontPage is not exactly the choice of the cognoscenti.]
Evidently the mayor’s assistant asked Sheboygan city attorney Stephen McLean whether Reisinger could link to the site. McLean rightly noted that knowledge or consent of the linkee isn’t required, but then offered to send a cease-and-desist letter to Reisinger, which he did. (If you’re scoring at home, McLean is the current clubhouse leader in “Fastest transition from legal accuracy to legal idiocy.” When the government orders you to remove something from your Web site, well, it should really have better grounds than keeping the current mayor happy. If memory serves, the First Amendment actually did get incorporated against states. Note also that McLean helpfully copies the mayor on his C&D letter, saving us the trouble of figuring out causation.)
According to news stories and Reisinger’s suit, the story gets even more fun: the police launch an investigation into the linking. (It’s a wonderful endorsement of Sheboygan that police resources are available to devote to such efforts – crime must be low. Next week on “CSI: Sheboygan” – “Linking!”) Now, Reisinger does the right thing and gets a lawyer, Paul Bucher. Bucher tells Reisinger she’s got nothing to worry about and points out to McLean and the mayor that it’s considered a good idea to have actual legal support for government demands for on-line censorship. The city, seeing that Reisinger is now a gadfly with sting, withdraws the demand (and, presumably, the investigation comes to naught.) Reisinger alleges she’s had negative reaction to the investigation that has hurt her Web design business, and she’s suing the mayor, McLean, the chief of police, the city, and the city clerk.
This is probably what it looks like: small-town mayor calls on friends in the city’s law office and the police department to strong-arm a critic. (Mr. McLean in particular might want to give a read to Wisconsin’s Rules of Professional Conduct for Attorneys – say, part  of the Preamble about harassment and intimidation; SCR 20:3.1 about the duty to make claims based on existing law, and not taking action that only harasses someone; and finally have a hard look at 20:8.4, on misconduct.) I’ve no idea what the merits of the recall effort are or were, and I don’t really care.
But I was curious: would there be any grounds for resisting the suit? Are there plausible claims that the city / mayor / McLean might advance?
My first thought was trademark, and the C&D letter hints in this direction as well: indicating that the link might make it appear that the Police Department had “authorized” the link. (Presumably, one would argue that Reisinger is trying to show that her Web design business is endorsed by the Department.) So, this could be a false advertising claim, or perhaps some sort of straight passing-off claim, under Section 43 of the Lanham Act. False advertising (Section 43(a)(1)(B)) doesn’t work: you have to show 1) a false statement of fact, 2) actual deception or a tendency to deceive a substantial portion of the public, 3) the deception affects purchase decisions, 4) the false statement goes into interstate commerce via the defendant, and 5) the plaintiff is, or is likely to be, injured. Any claim here would almost certainly fail on #2, 3, and 5. A link to the police department probably doesn’t confuse the public, who are unlikely to believe the cops endorse Web designers, and there’s no injury. (A quick search of the PTO’s database didn’t even turn up any Sheboygan marks registered by the city, or the police.) False endorsement under 43(a) might be closer, but the necessary requirement of falsely suggesting “approval” by the police department seems similarly thin – especially if the department has no track record of endorsing products or services (I’d guess they don’t). So, TM is out.
Copyright? After all, Universal v. Reimerdes showed that active hyperlinks (versus passive text) can violate the Digital Millennium Copyright Act when they lead to programs that help decrypt DVDs. But Reisinger’s link didn’t lead to anything illicit – just the opposite. And the URL is out as copyrightable subject matter – either it’s too short, or it’s too functional (or maybe both). There’s no framing (raising concerns about ad revenues). The best argument for the police would be to try to claim copyright in the image / logo for the police department (on the front of Reisinger’s site), but that only forces her to change how the link appears, not the link itself.
Deeplinking, as with the string of Ticketmaster cases? Well, Reisinger’s site only linked to the top level of the Police Department site (the “New Front Page 1″), so no dice.
Electronic trespass to chattels? No, Reisinger’s site isn’t crawling the Police Department’s.
So, I’m stumped. Did I miss anything? What do you think? Or do I just have too much free time to ponder these things?
Big Props to the Citizen Media Law Project for such thorough coverage of this case, and for making the documents available!