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The Law of Linking - Part One

Mayday! Mayday! Hobie Cat under attack from six aircraft carriers. Thus Total News was described when sued by CNN, Times-Mirror, Reuters, and others for hypertext linking to their web pages. So the case settled, unfortunately. It's unfortunate because we were given no legal precedent. No guidance on the incredibly hot subject of the legality of linking. It would have been a useful starting point. Instead we learned again that David sometimes must make a deal when facing a team of Goliaths. No news there.

Let's regress. The Internet is a rather new and wonderful thing, which has developed its own culture. Today the dominant part of the Internet is something called the World Wide Web (of course you're web-surfing right now), and what makes the Web neat is linking. The very concept of the Web is that sites can and do freely contain hypertext links that let people (or browsers - not to be confused with the software that let's people browse) hop effortlessly from one web site to another. In the beginning, the Internet was a creature of academia. Hence it developed a culture dedicated to the free flow of information aimed at unrestricted exchange of ideas. Then commerce came to the web.

With the commercialization of the Web, we have the invasion of the "mine" concept. In commerce I guard what is mine, I try to increase what is mine, and if I can I will try to take what is yours and make it mine. Conflict with the free flow of information and free linking became inevitable. In our society, such conflict means lawsuits (well, they're better than duels). As law is a notoriously slow growing thing, it is ill prepared to deal with a technological and cultural speedster like the Internet. Frantically attorneys are trying to fill square holes with round legal theoretical pegs including a host of copyright and trademark ideas, misappropriation, false light invasion of privacy, passing off, even cyber-trespass. Hey! You! Get off of my cloud! [great song - Rolling Stones - best give credit when due.] One column can't cover all of these theories, so I'll concentrate on the Total News case, covering others later.

Total News, with fewer than ten employees, attempts to be a site where you can go to get any news you need. Obviously, it does not have the staff to generate the editorial content; so it uses the staffs of others via hypertext linking. From the Total News homepage, one can easily access CNN, Reuters, and others. Total News supports itself by selling advertising on its page.

The Total news approach was unique in its use of the latest framing technology. For example, if you clicked on the CNN logo, Total News software would let your browser go out and pull the editorial content from CNN into a frame in the center of your screen. The editorial content frame would then be surrounded by smaller frames containing advertisements from Total News' sponsors. What would be missing are the frames of CNN sponsors that, theoretically, provide CNN the revenue to maintain its news force. This contrasted with a straight link that would send the viewer to CNN's site fully under CNN control. Naturally this was all done without Total News having obtained any prior permissions from the plaintiffs. Hence the claim that Total News misappropriated copyrighted material for its own economic gain.

End of argument? Simple analysis? No way. First of all, there are many who believe that there is not a copyright issue at all. A mere address is not copyrightable, so the mere posting of a URL won't cut it. Furthermore, Total News does not technically reproduce the copyrighted material. It is generated by the linked to news source's Internet server upon receiving a request from the browser. Can you have a copyright violation without the miscreant's copying? Well, maybe. There are theories under copyright law that limit public display of copyrighted material and prohibit assisting infringment by others that might be applied to this case.

Another argument for the defense states simply that any entity posting to the Web knows that what is posted is out there for anyone to grab, and should be deemed to have acquiesced to the Web's culture. Legally this translates into an implied license to use copyrighted material.

Interestingly, in a scenario resembling the wonderful "Spy vs Spy" cartoons of Mad Magazine, programmers are developing ways to prevent or limit unauthorized linking. At the same pace other programmers are finding ways around the limits. What the law is too slow to deal with, technology will address. Unfortunately, technology costs money; and I fear many useful information providers will not have the wherewithal to participate in this cyber-arms race.

Thus it is indeed unfortunate that this case settled out of court, as we would have all benefited from at least some guidance on the legal theories. So what's my advice to webmasters? Be circumspect when framing linked material of others. Be extremely circumspect about framing Goliath.

Copyright 1997 Daniel A. Krohn; also published on Houston News Today Online