Broken Links and Broken Laws: Copyright Confusion Online

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Dilbert Gets Litigious
If Eric Eldred is the Columba to Disney's Finnian, Dan Wallach is a copyright law pioneer for another, much grayer issue surrounding online copyright issues. Around the time Eldred was uploading the public domain, Dan Wallach was breaking legal ground in a far subtler—and still emerging—question of copyright infringement in the age of hypertext linking.

Wallach, an avid fan of the Dilbert comic strips, found the layout of United Media's Official Dilbert Web site "really lame". And so, taking it upon himself to offer the world a better layout, he linked—the better to skirt the copyright issue—directly to United Media's Web server. He called his creation The Dilbert Hack Page.

"When you visited the Dilbert Hack Page, your browser would connect to United Media's server to download the images" Wallach explains. "However, it would present those images in a different fashion than United Media might have liked."

It didn't take long for UM's lawyers to come knocking. "Thank you for your enthusiasm," they wrote. "However, this material is copyrighted by United Feature Syndicate, Inc."

"I very carefully designed my Web page to avoid copyright problems," Wallach wrote back. "If you examine the HTML for my page, you will see it pulls images from the United Media server. I do not store any United Feature Syndicate intellectual property on my server. At the current time, copyright protection does not extend to URLs. Thus, I believe I am within my rights to present my Web page in its current form. Technically, I present a directory of pointers in much the same way as Yahoo!, Lycos, or AltaVista. The legality of my page is directly related to the legality of search engines in general, and any legal action against me would set an important precedent for intellectual property on the Web."

UM's reply: "If it turns out you are wrong, it will cost you a lot of money."

At that point, Wallach called a lawyer.

UM's chief complaint was that The Dilbert Hack Page did not link to the Dilbert site "in its entirety". "We offer our comics to readers free of charge" they said. "All we ask in return is the opportunity to sell advertising near these comics. By linking to just our comics, Mr. Wallach impairs our ability to generate revenues."

Wallach still explains his position this way: "consider a VCR that can be programmed to grab every episode of a TV show and record them sequentially, with commercials removed. The TV shows are still broadcast on the air, but the VCR presents them in a fashion that is not how the original broadcasters intended. That's what the Dilbert Hack Page did."

"There's nothing to stop a viewer of the normal Dilbert pages from ignoring the advertising, whether by personal choice, or via software—such as WebWasher, my favorite—that automatically cuts out advertisements. Likewise, there's nothing to stop a VCR user from hitting the fast forward button. Even with live TV, you can always change channels during the commercials. Thus, it's hard to argue that the TV networks ever "lose" any money when a viewer ignores the commercial. Advertisers already figure in that their "hit rate" on such advertising is relatively low."

The issue was settled out of court and rather amicably (in no small part due to Wallach's sensibility in the matter), with Wallach agreeing to discontinue the Hack Page and UM agreeing to Wallach's documenting the dispute (which can be read for posterity at www.cs.rice.edu/~dwallach/dilbert).

But the issue of linking continues to confound. Hypertext linking is, after all, the fundamental architecture on which the World Wide Web is built. As such, attempts to control it through licensing are fraught with conflict.

You'd be forgiven for thinking that the 1998 passage of the Digital Millennium Copyright Act cleared some of these issues up. But because Wallach's dispute with UM came about prior to the 1998 enactment of DMCA—and there was no legal precedent at the time for the issues in dispute—it wasn't until the Ninth Circuit Court of Appeals in San Francisco ruled on a similar case last February that Wallach's intended defense was put to the test.

Under the aegis of DMCA, Leslie Kelly, a professional photographer, sued Arriba Soft Corp. (now Ditto.com), owner of a search engine that displays its results as thumbnail pictures rather than text. Double clicking on the thumbnails delivers a larger, in-lined image of the original image from its source location. Kelly claimed that Arriba's in-lining of his copyrighted work within its search results constituted infringement. The case's first hearing resulted in a ruling for Arriba; according to the court, Arriba's database of images constituted "fair use." Two years later, however, the appeals court both affirmed and reversed the lower court's opinion. "The creation and use of the thumbnails in the search engine is fair use," it said. "But the display of the larger image is a violation of Kelly's exclusive right to publicly display his works."

Instead of shedding light on the fundamental issue of intellectual property rights as they apply to hypertext linking, the Kelly v Arriba ruling—and by extension the DMCA—have only demonstrated the depth of the confusion over the matter.

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