Irish Newspapers Claim Hyperlinks Require Fees, Licenses
McGarr Solicitors explains how Irish newspapers claimed rights to hyperlinks in 2012. So goes the hyperlink wars that are almost 20 years old. And this is a textbook example of Brian Winston's "law of suppression of radical potential."
- "This year the Irish newspaper industry asserted, first tentatively and then without any equivocation, that links - just bare links like this one - belonged to them. They said that they had the right to be paid to be linked to. They said they had the right to set the rates for those links, as they had set rates in the past for other forms of licensing of their intellectual property. And then they started a campaign to lobby for unauthorised linking to be outlawed...
- "They were quite clear in their demands. They told Women’s Aid “a licence is required to link directly to an online article even without uploading any of the content directly onto your own website.”
- Not Google. Not Microsoft. But Women's Aid, an organization advocating against domestic violence?
- In comments to the Irish Copyright Review Committee earlier in 2012, the Irish newspapers asserted: "It is the view of NNI that a link to copyright material does constitute infringement of copyright, and would be so found by the Courts (pdf, page 9)."
Myth: "A normal link is an incitement to copy the linked document in a way which infringes copyright".
This is a serious misunderstanding. The ability to refer to a document (or a person or any thing else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else.
- The report from the Copyright Review Committee, established in 2011, has been delayed until March 2013. Perhaps the world should weigh in?
Not a new argument, but a flawed one according to the courts
- "Jonathan Wills, publisher of The Shetland News, a 1-year-old daily online newspaper, began posting links to articles in The Shetland Times, a 124-year-old print weekly with an Internet edition. The News site listed Times headlines as hypertext links to Times articles."
- And then, 13 months later (per The Guardian): "The two sides agreed that the News could hyperlink to the Times - but on conditions: each link had also to feature a logo and an attribution ('A Shetland Times story'), which were to be hyperlinked to the Shetland Times list of headlines."
- In 1997, Ticketmaster sued Microsoft because its Sidewalk division was "deep linking" (bypassing the home page) to specific concert information. The argument then was not about copyright but ad revenue.
- Sidewalk was providing a service to customers, making it easier to find local concerts. Ticketmaster thought it would make more money from ad views than ticket sales.
- "Microsoft, meanwhile, argued that Ticketmaster's stance breached an unwritten Internet code, whereby any Web site operator has the right to link to anyone else's site. In addition, Microsoft offered a defense based on its stated First Amendement right to publish public information. The outcome of the case was eagerly awaited by Internet and First Amendment scholars, as no legal precedent existed in this area.
- The two giants settled in early 1999, with Microsoft agreeing to abandon deep links.
- "But with the settlement, filed in court on January 22, those looking for guidance were dismayed. "I'm sure it's in the best interest of the parties, but for the purpose of providing meaningful guidance to the Internet community, this is the worst news I've heard all day," Jeffrey Kuester, an Internet law specialist and a partner in the Atlanta law firm Thomas, Kayden, Horstemeyer & Risley, said when told of the settlement."
- Not only did Microsoft deep-six Sidewalk a few months later, it sold the entertainment portions of the business to .... Ticketmaster.
- And today, that deep-link prohibition is gone-gone-gone:
- One reason for Ticketmaster's short-lived success against Microsoft: a court decision in 2000. In the March 2000 ruling (Ticketmaster had sued Tickets.com in much the same way as it sued Microsoft), a California U.S. District Court ruled that linking did not violate copyright laws because no copying was involved ("The customer is automatically transferred to the particular genuine web page of the original author") and because "a copyright may not be claimed to protect factual data."
- Tickets.com is owned by Major League Baseball.
- Then in 2000 and 2003, Dutch courts made a similar ruling regarding hyperlinks linking to copyrighted material residing on the copyright owner's website. (This is different from linking to copyrighted material that has been pirated.)
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