April 9, 2001– Newsletter #125

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.