Tuesday, February 07, 2006

Deep linking: is this essentially footnoting as on a term paper?


Ever since it became common for individuals and small companies to have their own Internet domains (in the mid to late 1990s), there has been some controversy about unauthorized or unsolicited links, especially deep links, to other websites.

I can recall writing term papers in high school and being taught the arcane details of footnotes (the notorious Ibid and op cit) and bibliographies. This was decades before personal computers, and the only device in the house was a 1940s Royal typewriter with elite type. I can recall a handwritten junior English paper on James Fenimore Cooper (his treatment of female characters, which was not flattering) and the painstaking calculation of making the footnotes fit on handwritten pages with lined paper. In college, as an undergraduate, I once had to write an annotated bibliography on a later term paper.

So my view of links is that they are essentially footnotes. They provide the source for bombastic claims and arguments made by others about any controversial issue, and help the writer of online material build a case that some particular set of circumstances really does create a problem. Of course, one can just give the name of the source, but providing the html hyperlink makes the research experience much more efficient for the visitor.

So what is the big deal? For one thing, some people feel that deep links bypass the home page of a site and prevent the visitor from understanding the intention of the reference. In the physical world one had to go to the library and get a physical book or periodical article. They are concerned about loss of advertising of the reference site. They are particularly, and perhaps rightfully, concerned about framed links, where the referrer copies content into a frame on his own page. This may indeed be legitimate copyright infringement and should not be done without permission. Many news sites have terms of service that allow general linking but prohibit framing. It is well to remember also that the stories on most newspaper and news service sites are archived in a couple of weeks and that links to them will not work for long (or the visitor may be directed to a mechanism to purchase an archived article for a small fee).

There is a psychological point, that some people feel that an unauthorized link implies that the reference endorses the use of the material. This sounds like a well known problem from intellectual property law called right of publicity, but it is a false analogy. There have also been arcane arguments posed that some who provides deep links may in some cases be guilty of contributory infringement. There have also been cases of infringement claims for linking to sites that themselves have infringing copies of material, which in at least one case had been presented to show that a particular company’s products were defective.

In early 2003 the Ninth Circuit weighed in on a critical case (Kelly v. Arriba Soft) involving a site Ditto.com that linked to copyrighted photo images in-line. The Court discussed the use of thumbnail images for linking in an opinion that is thought to set important precedents. One can find more details at an Electronic Frontier Foundation link. There had been a major ruling in 2000 involving Tickets.com, discussed at this B.C. Intel Prop link, in which Judge Harry Hupp maintained The customer is automatically transferred to the particular genuine Web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently." (Other claims in that case were upheld.)

But (Nov. 2005) Mark Cuban (Dallas Mavericks owner and a principal player in Magnolia Pictures and some independent film ventures) suggests that major news sites pay for links to their stories when advertising revenue results for the original content owner. This is a “win-win” that would discourage print content infringement, at least, and pay for links, which have themselves been controversial. His argument is at this link.

Here is another copyright sidebar: In Britain, authors Michael Baigent and Richard Leigh of the 1982 book The Holy Blood and the Holy Grail, from Random House, are suing Random House for publishing Dan Brown's novel The Da Vinci Code (2003), which the authors claim unfairly expropriates detailed research presented in the earlier non-fiction book. Ideas cannot be copyrighted, but in Britain, at least, there is legitimate controversy about detailed factual research. It is not clear yet what effect the lawsuit could have in the United States. It could affect release of Sony-Columbia's film of the novel, at least in Britain, scheduled for May 2006.

3 comments:

Anonymous said...

Very well put. You are a true Boushka.

Bill Boushka said...

Thanks!! This is an important point. It still seems to generate occasional controversy

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