Legality of New E-Mail Service Questioned

By: Steve Outing

A new e-mail delivery service that allows Internet users to "subscribe" to any Web page and have it delivered to their e-mail box in HTML format -- for free -- is the latest spin on "push" online content services. But is it permitted under copyright law? Several copyright and intellectual property attorneys say probably not, while the executive in charge of the project -- also a lawyer -- says there is no harm done to publishers who hold the copyright on content distributed by the new service.

The service, introduced in recent weeks by New York-based U.S. Interactive, is called Digital Bindery. It copies content from Web sites around the world and then sends that material to its own subscribers who request regular updates of particular Web pages. The service could be used by a consumer to subscribe to a newspaper Web site columnist, for example; each time a new column is posted, an HTML e-mail message of the column is sent to subscribers who use the Bindery as delivery agent.

Digital Bindery is a significant departure from other "push" publishing models that have emerged in the last year. Previously, Web publishers controlled the push delivery of their own copyrighted material to subscribers. But now, Digital Bindery is attempting to insert itself as a middleman between the publisher and consumer.

A Digital Bindery user can register a request for the regular, automatic delivery of a specific section of any Web site he or she specifies. The Bindery's server then monitors that URL and, each time it is updated, makes a copy and dispatches it via e-mail to the user. The delivered item is the complete HTML code of the specified page, so the user needs to read it with a Web browser mail application or an e-mail client capable of rendering HTML.

Each Bindery delivery arrives in an "envelope" that contains a table of contents listing the Web page(s) enclosed. Users can "subscribe" to multiple Web site columns, articles and features (that are published on a consistent Web page or URL). The system can even retrieve Web content that requires a user name and password to view.

Theoretically, the Bindery's free service can compete directly with publishers who now deliver their own copyrighted Web content to their own subscribers for a fee -- should a publisher post content on Web pages for free but charge a fee to deliver it to consumers.

Client's rights

From the consumer perspective, the Bindery's service isn't much different from that provided by software programs like FreeLoader, an off-line Web application that Internet users configure to download a Web page that changes regularly. Freeloader downloads a copy of the item to the user's PC, saving the user the trouble of having to go to a specific Web site to copy the file manually.

But according to several copyright and intellectual property attorneys, there's a significant difference between a service like Digital Bindery and client software applications like FreeLoader. The latter, according to copyright and media attorney Sam Byassee of Smith Helms Mullis & Moore LLP in Raleigh, North Carolina, assists the consumer in making an "incidental" copy of a Web page on his PC in order to read the page, which is what the publisher wants to occur. That's acceptable under current copyright law, and in fact this "incidental" copy rule is what makes it technically legal for a Web browser used by an Internet user to retrieve and store a copy of a copyrighted Web page on his PC for personal viewing.

A third party company that makes a copy of a publisher's Web page and then delivers it to its customers is intentionally caching pages on its servers in order to send them to its subscribers. Neither copying a copyrighted Web page onto its servers nor sending it by e-mail to other parties is authorized by copyright law, Byassee says.

"Head of a Pin Theorizing"

Robert Kost, executive VP for product development at U.S. Interactive and the lead manager for the Digital Bindery service, calls that "lawyerly, head of a pin theorizing." Kost himself is a lawyer, who earlier in his career authored a study for the U.S. Office of Technology Assessment concerning copyright and computer networks.

In Kost's view, "the Internet itself is a copyright infringement," so theorizing about the technical legality of what his firm is doing is pointless. "It's absolutely absurd for publishers to say, 'I want to publish on the Internet, but I want to play by the old rules,'" Kost says. He believes that publishers need to understand that the Internet is a different kind of publishing environment, and they must adapt to the new rules of the new medium.

That's not to say that Digital Bindery hasn't thought through the copyright issues. For a publisher to consider legal action against Digital Bindery for copyright infringement, "the question is, is there harm done?" Kost says. His argument is that the Bindery service benefits the copyright holder by bringing additional traffic to the publisher's Web server. For every Bindery user who "subscribes" to a Web page, the Bindery servers go out and retrieve the document, Kost says. There is no caching of pages that multiple Bindery users might want, so if 100 people all request that the Bindery deliver the front page of the New York Times CyberTimes section, Bindery servers will generate 100 page impressions on the Times' server.

According to Forrester Research senior analyst Mark Hardie, who has reviewed the Bindery technology, that might present a problem in scaling the system, but is necessary in order to deter publishers from taking action against the company for financial injury due to lost page and ad impressions.

Kost says that publishers can benefit greatly by participating as an active partner with Digital Bindery. The company wants publishers to sign up to receive demographic information about users who subscribe to the publishers' pages via Digital Bindery. It's also begun an incentive program for publishers, offering a $1 bounty for each new subscriber they can get to sign up to receive a publisher's Web page delivered by Digital Bindery. (That program runs through April 30, but may be extended.)

Law Requires Opting In

Publishers concerned about copyright infringement by Bindery can easily opt out of the process, according to Kost, by inserting a line of code into their Web pages that block the Bindery's servers from copying their content, or they can ask Bindery to stop accessing their servers. "A publisher can insist on their rights, and we will honor their rights," he says. "We're not interested in fighting with people."

The problem with this stance, however, says Seton Hall University (New Jersey) law professor and cyber-law expert Dan Burk, is that "the law says a publisher has to opt in." A third party cannot, under copyright law, intentionally copy a copyright owner's content without first getting their consent; they cannot require a publisher to pro-actively remove itself from the process of its content being copied by the third party. In order to do this, a company like Digital Bindery would have to claim that they have "implied license" to copy the material, or claim "fair use." Burk thinks both of those claims are "dubious" in this case.

In practice, the lawyers interviewed for this article felt that the majority of publishers would not complain about their pages being delivered by a third party like Digital Bindery, as long as the presentation remained intact and the service did not reduce the number of page or ad impressions on the publisher's server. Those concerned about protecting their copyright are likely to simply "opt out" by blocking Digital Bindery from copying their content.

A Dangerous Game?

But Burk thinks companies like Digital Bindery are "playing a dangerous game in hoping that nobody is going to object." Even if no actual damages can be demonstrated, the law still applies and companies can be sued for statutory damages over copyright infringement. Statutory damages for a single infringement in the U.S. can be up to $10,000, and in the case of a Web page remailing service, there are theoretically a huge number of infringements.

Burk says that in the "old days" of the Internet when nearly everything published online was free, this might have been a non-issue. But today, big companies with large legal staffs are publishing on the Internet, and some of them are quick to go after copyright infringers. A company like Disney, which historically has been quick to go after those it perceived as infringing their copyrighted work, might be a likely candidate to initiate a test case. Burk believes the courts would not be sympathetic to a company that copies another's content without asking first.

"There are big bucks in this (Internet publishing) now. Someone is going to complain," he says.

Forrester senior analyst Bob Chatham, who has examined the online copyright issue for the Boston research group, says that publishers, in considering cases like this, must take into account the nature of the World Wide Web. "You can't just say, 'It's my ball, I'm going to take it home,'" he advises publishers. "Recognize that by publishing on the Web, you're publishing for everyone," and new ideas about copyright in cyberspace may be required.

For Kost's part, he'd like publishers to view Digital Bindery as a friend and partner and indicates that talk of technical copyright infringement is frustrating. But like it or not, his company's Digital Bindery concept presents a legal issue that is sparking animated discussion in the intellectual property and cyberspace legal communities -- and perhaps some day, the courts.

Contacts: Dan Burk, burkdanl@lanmail.shu.edu
Sam Byassee, byassee@interpath.com
Robert Kost, rkost@usinteractive.com

Steve

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This column is written by Steve Outing exclusively for Editor & Publisher Interactive three days a week. News, tips, and other communications may be sent to Mr. Outing at steve@planetarynews.com

The views expressed in the above column do not necessarily represent the views of the Editor & Publisher company