April 9, 2001-- Newsletter #125

By Joe Burns

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Goodies to Go (tm)
April 9, 2001--Newsletter #125

This newsletter is part of the internet.com network.
http://www.internet.com

Please visit http://www.htmlgoodies.com
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Greetings, Weekend Silicon Warriors,

As much as I love getting email over one of these newsletters, please hold your thoughts this week.

By the time you receive this email I will be on Spring Break. I'll spend my week giving a series of lectures at Florida State University and then sticking my toes in the Gulf of Mexico. I expect the amount of mail in my box will reach well into the four-figure range and I doubt I'll be able to respond.

Did you hear...

For the next ten years, The Massachusetts Institute of Technology (MIT) is putting "nearly all" of its class materials online. The move is to thwart what the school calls a "privatization of knowledge". The project is titled "MIT OpenCourseWare" and "would include material such as lecture notes, course outlines, reading lists, and assignments for each course". Read more about it on the MIT site at: http://web.mit.edu/newsoffice/nr/2001/ocw.html

In the last newsletter I stated that the newest Charlie Pride CD would carry an encryption that would disallow copying. I stated that I wondered how long it would be until someone cracks the code. Well, I am getting, over email so it's to be taken with a grain of salt, that the crack code is now being sent around in people's email signature files. That was also one of the main methods used for disseminating the DVD-encryption-cracking code. (Thanks, Greg)

The scores are in from last year's Hackers versus the U.S. Federal Government. The Hackers pulled a triple-double hitting 155 systems covering 32 government agencies. And across the big pond, a survey of IT professionals showed that the Hackers are hitting .333. The survey showed that one in three U.K. companies have been hacked...at least one in three of those who were surveyed.

Now onto today's topic...

Those of you who find the concept of copyright and trademark enforcement on the Web a bit of a misnomer will find this interesting. Did you know that when you create a link that the link you create might actually be property of the site you're linking to? Under copyright law, the linked site has the right to ask you to take the link down if they feel you're breaking copyright or trademark laws by using it.

Why? Well, because the link is to a source that may be copyrighted, and/or trademarked.

The owner of the rights has the ability, actually the duty, to protect his or her property. I say "the duty" because if copyright isn't protected, it can be lost. People often ask why Disney goes after even the smallest of company that evokes the likeness of Mickey Mouse. That's why. If they didn't, they could lose their copyright.

The linking itself is not breaking copyright law. You may link to a page as long as the link itself is true to what it proclaims to link to and is not in anyway misleading or defamatory to the site being linked to.

This was upheld in a March 27, 2000 ruling overturning many of the statements in Ticketmaster versus Tickets.com. Judge Hupp stated that ""[H]yperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved" [Source: http://www.gigalaw.com/articles/kubiszyn- 2000-05b-p1.html]

I have only once had to evoke copyright law against a link to HTML Goodies. I once offered a full-size banner for people to put on their sites. Well, one day a reader sent me an email stating he had placed a banner on a site he built with the help of Goodies. He also gave me a login and a password in case I wanted to visit. That seemed odd so I went.

When I arrived, I found myself in a hard-core porn site. There was the Goodies banner right at the top. "This site built with Goodies!"

It certainly was, I guess.

I politely asked that the banner be taken down and he agreed. No fight. He just agreed.

There was nothing stopping him from making the link. He didn't need my permission.

It's just that when I saw the site, I felt that my site, and its good name, could be tarnished, so I evoked my right to protect my copyright.

The owner of the site did have the ability to fight me by proclaiming "fair use" under copyright law or, if I had trademarked the site, something called "descriptive" or "non-trademark" usage.

But was the link really worth a fight?

Well...yes. And it has happened before.

I would think that any site would enjoy a link that is supportive and links right to the homepage. You'll find many link policies will grant that permission. Where those who link to other sites begin to get into trouble is when they create "pass off" links or "deep" links.

Passing off is the concept of making a link to a site so that the page displays inside of your site giving the impression that the linked page belongs to you. That's possibly a violation of copyright and/or trademark law, specifically the Lanham Act http://www.inta.org/about/lanham.shtml.

In the case "Washington Post Company versus Total News Inc.", the Post argued that Total News had passed off Post content as its own by surrounding it with the Total News ad shell. The case was settled four months later through an agreement that the links would be made much more visible.

Deep linking is setting a link beyond the homepage of a Web site. If a person linked directly to my table tutorial on HTML Goodies rather than the index page that would be considered a deep link. I'm OK with it - so go ahead.

Ticketmaster.com wasn't OK with it however. In Ticketmaster Corporation versus Microsoft, Ticketmaster was upset that Microsoft's "Seattle Sidewalks" pages were linking past the Ticketmaster homepage that was full of ads, to a deeper page that did not have ads.

The case was settled in February of 1999 when Microsoft agreed to link only to the Ticketmaster.com homepage.

So what does this mean to you, the Web page designer? It means that even though the Web is a stunning invention capable of allowing any page to link to any page, once that link is made, the linker takes on some responsibility.

Many sites are now offering guidelines regarding how to link to them. HTML Goodies is covered under the Internet.com linking policy which is as follows:

May I link to internet.com? You may post direct text hyperlinks to internet.com. Please keep in mind this is not permission to host an internet.com article or other content on your Web site, but merely to create a text hyperlink from your Web site to internet.com's content. Please do not use any internet.com logos or trademarks as hyperlinks. internet.com reserves the right to request the removal of any such hyperlinks. http://www.internet.com/corporate/reprints.html

Did you notice the last line?

This is actually a very allowing linking policy. Many sites have linking policies that go on for paragraphs. I read one from a New Orleans site that had a separate policy for school, personal, and business sites. They made requirements to the point of stating what the link must read.

If you went against the policies of the site, would you be held to the rules? Maybe yes, Maybe no. In another case involving Ticketmaster.com, suit was brought against Tickets.com for deep linking. The case stated that Tickets.com was bound by the policies stated on the Ticketmaster.com site which specifically forbade deep linking.

"Nope", said Judge Hupp. The judge dismissed the charge of "breach of contract" stating that Ticketmaster showed no evidence that Tickets.com knew of, or agreed to, any contract. http://www.gigalaw.com/articles/kubiszyn-2000-05b-p4.html

Oh well. I wish I had a definitive answer for you regarding making a link to another site, but I don't. Neither do the courts.

To be on the safe side, if you want to make a link to a site, you may want to go and read their policies and follow them.

Or you may just want to link to the homepage and say nice things.

>>>>>>>>>>>>>>>>>

That's that. I can't remember that last time a newsletter took me this long to write. I truly appreciate your taking the time to read it.

Joe Burns, Ph.D.

And Remember: The Howard Hughes plane, "The Spruce Goose" was actually made of birch wood. The nickname was not invented for the Hughes plane anyway. At the time, almost any wooden plane was nicknamed a Spruce Goose. When Hughes built the massive aircraft, the media just perpetuated the name. It is said that Hughes greatly disliked the moniker.

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