Keeping Up With Copyright In The Digital Age

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Linking and Deep Linking
Other aspects of digital copyright law remain uncomfortably murky as new technologies and distribution channels emerge faster than the legal precedents that cover them. McGuire says, “Legislative attempts to control things can never keep up with those who create technology.”

A case in point is the practice of linking, or directing users to a website via a hyperlink on a page on another website. When that link goes directly to the content in question, rather than to the third party’s home page, it’s referred to as deep linking. Most people would acknowledge that linking is one of the fundamental features of the internet, but it continues to raise copyright concerns.

In the Ticketmaster Corp. vs. Tickets.com Inc. case of 2000, Ticketmaster sued Tickets.com for directing traffic from its website to a purchase page within the Ticketmaster site. Although this linking was potentially driving new customers to the Ticketmaster site, it did so in a way that bypassed the Ticketmaster home page and the ads that were placed there. The suit alleged that the practice of deep linking inhibited Ticketmaster’s ability to earn advertising revenue from its home page and violated its terms and conditions.

The judge in the case ruled in favor of Tickets.com, stating that “hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular, genuine webpage 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.”

The outcome of this case signaled an uneasy truce, although international courts continue to hear the occasional case that challenges the legality of deep linking. Last December, a federal court in Texas granted a preliminary injunction against the owner of a motocross website that provided deep links to live audio- casts of motorcycle racing events produced by SFX Motor Sports. The outcome of the case, which is still pending, bears close observation.

RSS Raises the Stakes
Perhaps a bigger challenge to the existing legal copyright framework is RSS (Really Simple Syndication) technology, which allows a website owner to aggregate content from third-party websites. While content in an RSS feed is optimized for syndication, one can’t assume that syndication rights are automatically granted.

However, some would argue that simply to put content into an RSS feed is to invite replication and syndication. “Blogs and wikis are a very interesting space right now,” observes CCC’s Burger. “What are the rules and conventions? It’s still evolving.” He points to Newstex as an aggregator that is handling blogs with care. The company, which aggregates real-time newsfeeds for corporate customers, also includes a “Blog on Demand” feature. Customers can add commentary from a host of influential bloggers with whom Newstex has negotiated a license for redistribution rights.

For publishers who want to protect their feeds, including a copyright assignment in the feed itself is a must. Additionally, inclusion of links back to the publisher’s website or providing “teaser” content only with a link back to the full article can increase the likelihood that appropriate credit for the content will be given.

As video and podcast distribution gain ground as channels for corporate content, look for the questions about copyright infringement to keep coming. Mike O’Donnell, president of iCopyright.com, which provides tools for digital content marketing and licensing, says, “Our customers are just beginning to address these channels. And what about other new mediums, like cell phones?” CCC’s Burger agrees, saying, “Customers are just starting to ask questions about ‘participatory media’ like social networking and the related licensing issues.”

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