> Linking to any web page on this Web site is prohibited absent our express written permission. Associating or juxtaposing our Web site or its Materials (e.g., through framing or inline linking) with advertisements and/or other information not originating from our Web site is expressly prohibited.
There are a bunch of websites with similar "restrictions".
> [...] and you may make use of the embedded share button and Email a Friend functions to share parts of this website via the particular social media networks or by email (using the Email a Friend function) as applicable. Other than as stated in these conditions of use, you may not make any part of the website available as part of another website, whether by hyperlink framing on the Internet or otherwise unless you have been authorised to do so in writing by British American Tobacco.
Victoria's Secret's restrictions sound like they are trying to prevent someone from making a lingerie porn site consisting of nothing but penis enlargement ads and Victoria's Secret catalog photos.
British American Tobacco may be trying to ensure they aren't liable for someone else presenting material from their site in a way that violates restrictions on tobacco advertising. When it comes to law, I'm never sure whether it's a case of too many lawyers or sensible paranoia.
To explore this idea a little further, if you download and host the lingerie porn, then this is obviously copyright infringement. But it's not clear if you only hotlink to the images, which may be what VS is trying to prevent here. Since they can't, they'd have to sue to try to enforce this license agreement.
Were I the defense attorney in that lawsuit, I'd say VS can change the URL of their images whenever they want, CDN cache invalidation notwithstanding.
How is it illegal to utter the words [XYZ]? A hyperlink is informational gibberish, its not a work of art in any way, not sure it should be copy-rightable (you cant copyright a public street address, for exampl). Its not a trademark (not public mark). Its not a trade-secret (once I know it). Or is it one of these things? Is this TOS some sort of confidentiality agreement?
Both gave too much weight to the advice of their in-house counsel?
I bet they have that silly legal footer at the bottom of their outgoing email about how you have to delete the message if you aren't the intended recipient.
I've seen similar restrictions in other websites and I could argue that the lawyers writing these TOS are either clueless about SEO or very aware of how SEO works (I know I am citing the 2 opposite but I'm explaining why below).
Clueless about SEO:
I have no idea why a website would like to limit another site from linking to it. It is counterintuitive and would likely go against the same site's SEO strategy.
Aware of how SEO works:
I could argue that lawyer knows how SEO works and are just trying to cover their assess if they'll need a link removed in the future (I doubt they'll never use that clause legally against someone unless they really need to). Why would they need to? I've heard of some black hat SEO stories where certain individuals would link with a farm of sites that are either flagged or irrelevant to another site all in hope to get it flagged or down in google ranks. I'm not sure if that would work and could question the motivation of these individuals but I've even personally witnessed trackbacks and links from "porn" sites and irrelevant sites to my website and blog. These lawyers could potentially use that clause to sue that individual without having to prove there have been any damages from the links.
I would go with option A however since I'm not sure this is the case here.
> We have a no-tolerance policy regarding the use of our trademarks or names (e.g., of Victoria's Secret, Victoria's Secret Pink, or Pink Nation) in metatags and/or hidden text. Specifically, the use of our trademarks or names in metatag keywords is trademark infringement, and the use of trademarks or names in page text, metatags, and/or hidden text for purposes of gaining higher rankings from search engines is unfair competition. Linking to any web page on this Web site is prohibited absent our express written permission. Associating or juxtaposing our Web site or its Materials (e.g., through framing or inline linking) with advertisements and/or other information not originating from our Web site is expressly prohibited.
Would the law actually consider the use of a trademark inside a meta tag, where people couldn't see it, to be an infringement? Has this legal theory ever been tested in a court?
It looks like it depends on the context. If your web page is actually making a statement about Victoria's Secret (e.g., "our products are as good as theirs, but cheaper"), then it looks like putting their trademark into your meta tag would be allowed as fair use. But just adding their trademark to your meta tag to get a hit when someone searches for them could be considered infringement, since you're using the trademark to confuse the consumer into believing that your site is somehow associated with their trademark.
Context matters hugely. Here is their full Linking section, which does not include anything from the title:
"
Periodically, links may be established from this Web Site to one or more external web sites or resources operated by third parties (the "Third Party Sites"). These links are provided for your convenience only. In addition, certain Third Party Sites also may provide links to this Web Site. None of such links should be deemed to imply that Victoria's Secret endorses the Third Party Sites or any content therein.
We do not control and are not responsible or liable for any Third Party Sites or any content, advertising, products, or other materials on or available through such Third Party Sites. Access to any Third Party Sites is at your own risk and we will have no liability arising out of or related to such web sites and/or their content or for any damages or loss caused or alleged to be caused by or in connection with any purchase, use of or reliance on any such content, goods, or services available on or through any such Third Party Site.
"
It seems fine to me. The text in the title actually is the following special section:
"
Special Notice
We have a no-tolerance policy regarding the use of our trademarks or names (e.g., of Victoria's Secret, Victoria's Secret Pink, or Pink Nation) in metatags and/or hidden text. Specifically, the use of our trademarks or names in metatag keywords is trademark infringement, and the use of trademarks or names in page text, metatags, and/or hidden text for purposes of gaining higher rankings from search engines is unfair competition. Linking to any web page on this Web site is prohibited absent our express written permission. Associating or juxtaposing our Web site or its Materials (e.g., through framing or inline linking) with advertisements and/or other information not originating from our Web site is expressly prohibited.
"
This seems quite reasonable to me. Apparently, spammers must be getting their pages higher for searches of Victoria's Secret than the site itself is at.
I think the policy is perfectly reasonable in context, and I think anyone reading this knows exactly what VS is talking about.
" Linking to any web page on this Web site is prohibited absent our express written permission. "
That still doesn't seem reasonable to me. Simply making this link: http://www.victoriassecret.com/site-terms-and-notices/ is linking to a web page on that site and I didn't, in fact, get their express written permission. Does that 'prohibition' seem reasonable?
It probably has something to do with the sentence preceding it about SEO.
"Specifically, the use of our trademarks or names in metatag keywords is trademark infringement, and the use of trademarks or names in page text, metatags, and/or hidden text for purposes of gaining higher rankings from search engines is unfair competition."
This clause itself may be void depending on where you are. You might be liable by law, but what's the point having the clause in the TOS where you can never prove that the infringer ever saw the TOS, let alone accepted it.
Did the OP ever agree to the terms and conditions for this web site? There is no legal contract unless it's voluntarily agreed to by both parties, and when you go to victoriassecret.com, there's nothing that says "click here to confirm that you agree to the terms of this web site".
So here's an interesting legal question- do you 'own' the full URL to a website by registering the domain?
I have never been to the Victoria's Secret website, so I have not read their TOS. Yet, if I see a link on a page (say, these comments) and I re-link to it (http://www.victoriassecret.com/shoes), am I in violation of their TOS?
Do they have any legal ground to stand on to stop me from posting this link? If millions of others post similar links, and they don't defend against those, does it show that they have less of a case?
This all seems absurd to me. My guess is that its posturing on VS's part, and while they might send out some nastygrams from their legal team, they probably wouldn't get far in court if they tried to press the issue more.
Does this mean that Google is violating their terms by listing them in search results? I think someone from Google should maybe try to comply with this, I bet VS will be thrilled ;)
I wonder if they seriously have a use case where it is BAD to link to this site, or if it's just some crazy-ass boilerplate cut and paste from a document written in 1997.
This is just an educated guess, but I am fairly certain that this wouldn't hold up in a US court if they were to sue over it. Banning something as broad as a link to a website would probably run into serious first amendment issues. Further, they probably would never sue over it, because once they test in in court and lose, then the clause is demonstrably invalid. If it's never tested, they can still use it in C&D notices to try to intimidate people.
I think too many businesses are misunderstanding differences between laws and their self-written self-fullfilling TOS-es and policies.
In other words not following someone's TOS is not illegal and cannot be prohibited by the business itself, unless it somehow conflicts with country laws.
Robots.txt is only an indication of which pages should/shouldn't be visited.
Instructions about which pages can be included in a search engine's index (and hence linked to from results pages) would go in a meta tag on the relevant page.
Very large sites would love to see a 'noindex' parameter in robots.txt; sadly it's not there.
Hah! So one might think.. but right now they're linked from HN, with more links in the discussion. I never was to that site before, and probably never would have if it wasn't for this story. Like here, it's going to be linked on a lot of blogs, forums etc. that would otherwise not have linked to it. They can change whatever they want about their TOS and robots.txt any time they wish; most of those links will stay for a long, long time.
This is either very stupid or very smart; or maybe so stupid it wraps around to smart.
There are a bunch of websites with similar "restrictions".
A notable example is from the UK: The Shetland Times vs The Shetland News (http://www.linksandlaw.com/linkingcases-deeplinks.htm#Shetla... Times v. Shetland News) Mentioned on the talk page of the wikipedia article (http://en.wikipedia.org/wiki/Talk:The_Shetland_Times)
British American Tobacco is a good example of a site from a company with too many lawyers: (http://www.bat.com/group/sites/uk__3mnfen.nsf/vwPagesWebLive...)
> [...] and you may make use of the embedded share button and Email a Friend functions to share parts of this website via the particular social media networks or by email (using the Email a Friend function) as applicable. Other than as stated in these conditions of use, you may not make any part of the website available as part of another website, whether by hyperlink framing on the Internet or otherwise unless you have been authorised to do so in writing by British American Tobacco.
Guess I've just broken their TOS?