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Copyright Issues Present Ongoing Dilemma: To Link or Not To Link? 

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To some, ownership of intellectual property rights in cyberspace simply reflect corporate values that treat virtual space no differently than physical space, where private lots and businesses are protected by walls, fences and gates. This article was excerpted from the book, "Digital Dilemmas: Ethical Issues for Online Media Professionals."

In addition to enabling users to efficiently trade music and movie files, the Internet also allows users to circulate news content, to which they may attach their own comments. By simply cutting and pasting an article from an online news service to a bulletin board and inserting his or her own critique of the reporting, a user can attempt to spur an online conversation.

Other readers observing the post may then offer their own comments on the article, or on the first poster's critique, and so on and so on -- informing, arguing and correcting each other as they go, which is the essence of public debate.

However, it is important to realize that while there is a vast amount of public domain content on the Internet, most news articles are copyrighted just like entertainment products.

So the question arises: Is it ethical to make and distribute copies of news content?

On the one hand, users could argue that news is a public good and that exchanging it to promote public discourse is, indeed, ethical. After all, circulating copies of news stories offline for noncommercial, educational purposes is considered ethical as well as legal, so why shouldn't doing it online be treated the same?

News organizations, on the other hand, might argue that it costs a lot to produce online news content and that such costs can only be recovered if users read the news on the organizations' Web sites, where they will be exposed to advertisements that finance the site.

On another level, they may also argue that news content is private property; therefore, circulating free copies of it is the same as pirating movies or music and should be considered both unethical and illegal.

Arguments very much like these were presented in a 1999 court case involving a Web site, called Free Republic, that hosted a forum where users regularly posted, without permission, the full text of news articles from major news Web sites and offered their own comments about the quality of the news reporting, often accusing the news media of having a liberal political bias.

The Los Angeles Times and the Washington Post sued the operators of the site for copyright infringement. The court ruled that even though the site didn't charge user fees, it could be considered a commercial operation because it solicited donations and posted advertisements for other politically oriented sites.

As such, the court ruled that posting articles was a commercial use of copyrighted material, which violated the rights of the news organizations.

Presumably, the court's decision leaves open the possibility that noncommercial copying and posting of news articles is a fair use. If so, it would be legal, but would it also be ethical? [Legal scholars] suggest that so long as the reproduction of material doesn't exploit the work commercially, it is ethical. News organizations might counter that all copying without permission is unethical.

Resolving this dilemma might turn on the question of whether or not one considers news to be a different kind of product than entertainment or other physical products. C. Edwin Baker, a prominent legal scholar and First Amendment theorist, has argued that news is an important public good, necessary for public discourse and personal enlightenment.

Given Baker's view and considering the fact that news reporting typically involves the gathering of perspectives on events that happen in the public sphere, one could argue that news content should be held in common ownership much like a public park or transportation system.

News organizations, however, will likely contend that they specifically, rather than the public at large, have expended time and money to produce the content, thus they've earned the right to control how it is distributed.

In a sense, then, cases such as the one involving the Free Republic Web site invite us to consider much broader questions about the ethicality of applying copyright law equally to news and entertainment products.

Richard Stallman, as we've noted, has called for differing levels of protection based on the use, or purpose, of a work. Does news have a higher purpose than entertainment? If so, what sort of copyright scheme, if any, would be appropriate?

The Linking Controversy

As the result of Los Angeles Times vs. Free Republic, operators of numerous Web forums and e-mail lists instituted policies that prohibited the posting of news content in full.

If users wanted to comment on a news story, it was suggested that they quote only a few sentences or a paragraph directly and include a hyperlink to the story. To many users and news organizations, this appeared to be a sensible alternative.

However, others questioned the ethics of linking to copyrighted material without permission -- could linking be construed as illegal copying?

Given that links can connect to either a home page or to internal content, which is where the full news article is likely to reside, should there be one protocol for home page linking and another for "deep linking,'' which connects users to internal content?

Linking and the Law

For starters, what is the nature of a link -- what does it do, what is its purpose? The most elementary answer is that a link is a connection between two Web pages. Consistent with this definition is the view that a link is something akin to transportation and once clicked, it takes the user to another location, or address, on the Web.

But this isn't the only metaphor used to explain links. Some users and content producers have argued that rather than transporting a user somewhere else, clicking a link actually retrieves or downloads copyrighted material into one's browser. And as such, links facilitate the illegal copying of Web pages.

People taking this position often argue that linking without permission is unethical and may even be considered as copyright infringement.

Tim Berners-Lee, the computer scientist credited with inventing the Web, rejects this assertion and argues that a link is nothing more than a digital referral or footnote. "The ability to refer to a document,'' he writes in his book "Weaving the Web," "is a fundamental right of free speech. Making the reference with a hyperlink is efficient, but changes nothing else.''

Berners-Lee's position has been accepted by at least one U.S. court, which ruled that linking to both home pages and internal content "does not itself involve a violation of the Copyright Act.''

Some notable cases in other countries, however, have not come out the same way. In 2002, a Danish court ruled that a commercial news aggregator's practice of deep linking to content on news Web sites violated European copyright law and was a form of unfair competition. Also in 2002, a German court ruled that deep links to database content violated a European Union law that grants copyright protection to database owners.

The courts, it appears, have made the legal issues that much more complicated. On the one hand there is the European trend toward recognizing deep links as a type of infringement, while the U.S. courts (at least as of late 2002) have offered little guidance other than to suggest that all forms of linking are legal.

Which brings us back to the ethical questions: Is linking to copyrighted material without permission ethical? How about linking to a home page? Or deep linking? Should there be differing ethical protocols for them?

An Ethical Protocol for Linking?

Hoping to provide some guidance, Richard Spinello, a professor of management and ethics at Boston College, has answered, yes, there is a significant difference between home page links and deep links and that Web publishers should follow different rules for each.

Spinello bases his argument on the rationale that while the Web is an open medium, individual Web sites are not common property; they belong to their creators, who, he believes, have the ethical right to exert some control over who links to their sites and how they do so.

In this way, he questions the argument that "one's mere presence on the Web is an implied license to link'' and suggests that the rights of the user community must be balanced against the rights of Web site creators.

After staking out this position, Spinello points out that Web sites are often built with a specific navigational plan in mind. That is, the designer intends for users to see certain advertisements or artistic features in a particular order, thus they structure pages and links to facilitate a seamless presentation.

Deep linking may defeat the creator's right to fair compensation, Spinello argues, by steering users around advertisements, and it may defeat the site's aesthetic presentation -- much like a movie theater showing a movie out of order so that the last scene appears first. He also contends that Web site authors "should have the right to restrict links from certain sources when such a connection might be a source of embarrassment.''

As an example, we might consider a news site that is being linked to by a pornographic or racist Web site. In this situation, Spinello believes the link could give the impression that the targeted site endorses or has some affiliation with the source of the link, which might harm its reputation and credibility.

Spinello suggests that an ethical linking protocol would consist of an open standard for linking to home pages, meaning that one could "assume an implied license to link without permission to any target site's home page.'' If a Web site subsequently learns that they are the link target of a site the operators find offensive, they should have the right to ask the source site to remove the links.

On the question of deep linking, Spinello suggests that in all cases, Web sites wishing to connect to internal content should obtain permission before doing so.

Opposing Views

Spinello's protocol does not sit well with a number of Web users who feel that the medium was deliberately designed to allow users to shift instantly from idea to idea (and page to page) in a nonlinear, nonhierarchical manner.

Berners-Lee indicates that it was his intention to develop a medium that made random connections, or links, from one subject to another "in an unconstrained, web-like way'' that mirrored, as closely as possible, the intuitiveness of the human brain. Hypertext itself, as Berners-Lee notes, was conceived as a language in which the reader "could follow links and delve into the original document from a short quotation.''

From this position, attempting to guide users through a series of advertisements or story items they would rather skip defeats the original design of the Web.

To use an analogy from another medium, it would be like telling VCR users that they could not fast-forward through commercials or parts of a taped program they find uninteresting. In fact, some leaders in the entertainment industry have argued that the use of so-called "smart'' personal video recorders (PVRs), which allow users to record entire programs without commercials, is tantamount to "stealing the program.''

Darren Deutschman, an intellectual property consultant who generally supports unrestricted deep linking, suggests that such rhetoric, as well as attempts to reign in linking through the legal system, simply reflect corporate, commercial values, which treat virtual space no differently than physical, or real, space where private lots and businesses are protected by walls, fences and gates.

An opposing set of values posits that cyberspace is quite different from physical space in the sense that traditional, commercial borders don't -- or shouldn't -- exist. The conflict between these two value systems appears to be driving the deep linking debate.

"The deep linking issue,'' Deutschman told Wired News, "attempts to answer the question that's been asked since the Internet first became part of the general public's consciousness: Is this medium a free source of information for the benefit of the people, or a controlled presentation of branded content that benefits commercial interests?''

Is It Stealing or Just Guessing?

In October 2002, Intentia, a Swedish software company, filed a criminal suit against Reuters PLC, after the wire service linked to the firm's Web site and located and then published the still unreleased third quarter's financial report, apparently by guessing the correct URL where that information was stored. Intentia called the event "an unauthorized entry.''

Reuters' spokeswoman replied that "We are rejecting Intentia's allegations completely. Information was accessed from the company's Web site and in the public domain. It wasn't a private site. It wasn't password protected. (The report) was on their public Internet site; it was published, and therefore we reported it.''

Reuter's editor in chief, Geert Linnebank, weighed in by saying, "Reuters is in the business of informing the market with breaking news stories using all the tools at its disposal, but doing so in a legitimate, ethical manner with journalistic integrity.''

This case raises several issues. What constitutes public information and what constitutes private?

According to Forbes magazine's Web site, Forbes.com, Linnebank said that "This information was in the public domain and available from Intentia's public Web site where the company itself put it.'' In this case, it would seem hard to fault Reuters from a legal standpoint, at least.

But Intentia chose to define "public'' from a completely different perspective -- that is, it cites Swedish laws regarding "publicly released'' information, and according to those laws, claimed Intentia, its new earnings reports were not yet made "publicly available.'' In this case, Reuters could be accused of accessing private information.

But this case raises larger ethical issues regarding the use of other's information stored on their Web site. Among them:

? Who should determine whether information is considered public or private? Should it be solely up to the creator of the information?

? Is it OK to "guess'' URLs to locate information on a public server that the creator did not want to be made public? Which analogy would be more appropriate to describe this activity:

(1) trying a bicycle lock combination until it opens and then taking the bicycle,

(2) looking through another organization's trash cans for sensitive material that was thrown away and then publishing it,

(3) reading and publishing a company's internal memo that you found inadvertently left on a coffee table in an office lobby, or

(4) publishing a financial table from a company's financial report that the firm requested you not publish as it was published too early by mistake.

? What party should shoulder the majority of the burden in determining whether information located on a publicly available Web site is considered public or private? Should it matter how the Web page was accessed (i.e., via a search engine, by reference from another site, by guessing the URL)?

All media professionals who use information from the Web, and not just media professionals who work in the online medium, will want to consider these matters as part of an ethical standard. A practical consideration to keep in mind in a case like this is what will be the consequences of publishing information that the owner did not mean to make public, and will it be worth it?

This is an edited excerpt from the book "Digital Dilemmas: Ethical Issues for Online Media Professionals," published in Aug. 2003 by Iowa State Press. This excerpt is published with permission of the authors and publishers.

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Related Links
'Digital Dilemmas: Ethical Issues for Online Media Professionals'
C. Edwin Baker: 'Market Threats to Press Freedom'
Darren Deutschman: Quoted in Wired News
Forbes.com
Free Republic
GigaLaw.com: Ticketmaster v. Tickets.com
ITWorld.com: 'Intentia: Reuters hacked financial results'
Intentia
Iowa State Press
Links & Law: Decisions from Germany
Links & Law: Decisions from U.S. courts
Links & Law: Decisions from other European countries
Los Angeles Times
OJR: 'Impermissible Links'
OJR: 'Licensed to Link'
OpenDemocracy.com Interview with Richard Stallman: 'Let's Share!'
Reuters PLC
Reuters Press Release: 'Reuters rejects Intentia's allegations'
Richard Spinello: 'Web Site Linking: Right or Privilege'
Tech Law Journal: Los Angeles Times vs. Free Republic
Tim Berners-Lee: 'Weaving the Web'
Tim Berners-Lee: Home site
Washington Post
Wired News: Article on Danish court ruling
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Is It Appropriate for Reporters to Silently Monitor Discussion Groups?
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Robert I. Berkman

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