Some Practical (Not Legal) Advice on Online Copyright

By: Steve Outing

If I had a law degree, without a doubt I'd enter the area of cyber-law and copyright, for that's certain to be a fast-growth area of the law where barristers earn a lot of money in the coming years. Indeed, publishers seem to be getting more friendly with their cyber-savvy attorneys lately, as recent developments demonstrate:

* Last week, several major publishers filed a lawsuit against TotalNews, a small Web site that points Internet users to news stories on other media sites. The media plaintiffs, which include Dow Jones, the Washington Post Co. and Time Warner's Cable Network, object to TotalNews linking to their stories by placing them in a Web browser "frame" which contains advertising sold by TotalNews and not shared with the publishers. TotalNews is characterized as a "para-site" by the plaintiffs.

* In my last column, I wrote about a new kind of Web page e-mail delivery service, Digital Bindery, that inserts itself as intermediary between publisher and consumer -- sometimes without a publisher's consent. That concerns some publishers, who don't like having control of their intellectual property taken away by the latest advance in Internet technology. While no lawsuits have been filed by publishers yet, this new type of service is likely to send opposing lawyers into court one of these days.

What are publishers to make of these developments? More importantly, what action should you take -- if any -- against companies that appear to be profiting from your copyrighted material?

The TotalNews case

Let's look at TotalNews, since I believe this is a fairly clear-cut case. TotalNews serves as an aggregator of news content published on the Web. It does nothing more than point Internet users of its site to news articles published at other media sites. In that respect, it is doing those media sites a big favor by driving additional traffic to their servers. It's doing what thousands of Web sites do: link to others' content.

Where this site gets in trouble is that it places the linked media sites' content into a "frame," so that when looking at an article that TotalNews has linked to that resides at WashingtonPost.com, for example, the user continues to see the TotalNews logos, navigation buttons, and TotalNews advertising. In this case, TotalNews is earning advertising revenue by "selling" other publishers' copyrighted content without their permission. As far as the plaintiffs in this case are concerned, TotalNews is misappropriating their property, and I agree.

As I see it, TotalNews needs to change its frame layout, which fills up to a third of a computer screen with its own logos and ads. While the courts have not ruled on such an issue, it would seem reasonable that a future judgment would rule against any company that presented others' content in a presentation that could confuse consumers about who owns the content and that degraded the presentation to the consumer of a linked site. Linking to other sites is fine, as long as you don't monkey with how the consumer sees the content.

Presenting other publishers' content within a frame that is smaller than the full size of a PC's screen (to make room for your own ads) is stepping over the line, for the publisher's site is going to look worse than intended. Do this, and expect publishers to complain.

The solution is quite simple. To appease publishers, sites like TotalNews must present linked content from other sites in a separate, second browser window, rather than in a frame. To do otherwise invites lawsuits like the one filed last week against TotalNews.

Not all bad

But wait a minute. Frames are not all bad, and there may be ways for companies like TotalNews to present others' content in appropriate ways. A small, thin horizontal frame at the top of a page that directs users back to a site like TotalNews is more acceptable, since the area below it has the same dimensions as any other Web page, minus about 1/2 inch along the top. I would caution news linking services not to use this space for advertising, however, for that will invite the wrath and lawsuits of linked publishers.

Another new site that links in exactly this way is The Mining Co., which places Mining Co. horizontal banners along the top of Web pages that it links to, so that users can easily go back to Mining Co. pages. This is less obtrusive, and there are no ads in that space. Whether this approach is deemed acceptable by the courts is to be determined, but I believe it to be OK. (Discussion of this topic has been heated in online discussion forums dealing with electronic publishing, and many people will disagree with me.)

Now, I'll admit to being a bit uncomfortable about the notion of another company adding anything to a Web page that I control, such as adding its own horizontal navigation bar atop my page. It very well might technically violate copyright law -- to be determined by future courts. But there are some reasons why publishers should let this one slide.

These sites are doing you a favor, bringing your site additional traffic, which benefits you by allowing you to charge higher advertising rates as a result of a larger audience. By taking a hard line against news linking sites, you are in fact hurting yourself. My advice is to send your lawyers after sites that confuse the user as to who originated the content or that insert advertising next to your content, so that it's confusing whether the advertiser is part of the linking site or the linked-to site. But if a site does a good job of letting the user know that the copyright owner is the originator of the content and doesn't slip ads next to your content, then let it be.

My argument is less legal than practical. The presentation of The Mining Co. linked pages very well could be ruled as copyright infringement in some future court case. But the benefit gained by having that site send you traffic outweighs the damage, in my view.

The Grateful Dead approach

In my column about Digital Bindery, similar issues were raised. This electronic delivery service allows its users (without charge) to receive any Web page via e-mail each time the page is updated. As confirmed by several copyright lawyers I interviewed for that article, the Digital Bindery approach of copying others' Web pages and resending them to its own subscribers without express permission of the publisher is probably a technical copyright infringement.

But again, I would urge publishers to consider the benefit that they are receiving from services like Digital Bindery. More Internet users are viewing your pages when a Bindery-like service delivers them on your behalf. A case can be made for ignoring the potential technical copyright infringement and recognizing that what's occurring is to your benefit. (It should be noted, too, that other common activities on the Internet can be considered technical copyright infringement -- such as the practice of proxy servers caching Web sites' content in order to speed overall network performance.)

What I'm suggesting is much like the approach of The Grateful Dead, the infamous rock band headed by the late Jerry Garcia. While at nearly every music concert you might attend you are prohibited from taping the performance for later listening, the Dead took the approach of allowing -- even encouraging -- fans to tape their concerts. It hardly hurt the group's music sales, and many have argued that it benefitted the band, which is one of the most successful in rock music history.

Obviously, copyright infringement is an emotional issue for publishers. With new Internet services like TotalNews and Digital Bindery appearing on the scene, copyright in cyberspace is emerging as a hot issue. I am arguing for reason. In some cases, a service may be technically violating a publisher's copryight, yet it does not harm and in fact benefits the publisher. My hope is that the interactive news media industry settles disputes between themselves before walking into court.

For publishers who object to these services linking or delivering their content, there's a simple solution that's much less expensive that consulting a lawyer. Just opt out by telling the news linking or delivery service to cease from accessing your Web content. True, the law says a copyright holder must be asked first before another company can copy its content. But rather than taking legal action, consider that the services are providing a benefit to the majority of Web publishers.

Some of these issues no doubt will end up being decided in court. What's happening today is interesting, because entrepreneurs are releasing new Internet services that challenge existing copyright law. Let's hope that publishers will recognize their self interest before running to the lawyers to challenge technical violations of the law yet which harm no one.

(To reiterate, I am not a lawyer and am unqualified to offer you legal advice. Perhaps I have offered some common-sense approaches to looking at the online copyright infringement issue, however.)

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