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May 21, 1997
Hey, You! Who You Pointin' At?
By ASHLEY DUNN
he lawsuit filed earlier this month by Ticketmaster against Microsoft sent a shiver of anxiety through the online world since it struck at one of the most basic aspects of the Web -- the freedom and openness of the hypertext link.
On the surface, the case seems like one of those typical uncivil affairs between big companies that probably could have been settled with a little more courtesy and plain common sense. But it touches an issue that concerns all Web users, linkers and creators alike.
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It started when Microsoft launched Seattle.Sidewalk, a site that provides local news, reviews, classified advertisements and event listings. Microsoft had been negotiating to make Ticketmaster's Web site available to Sidewalk users on a formal basis, but the negotiations broke down.
Since Ticketmaster's site requires no password, Microsoft went ahead anyway and placed several links leading to event lists and other material inside Ticketmaster's Web site, thus bypassing advertising on the company's home page.
What Microsoft did was not so different from what many of us do when we link to other sites, but Ticketmaster quickly filed suit, claiming that Microsoft was illegally using the company's name and "sucking" the value out of its site.
The specifics of the case may seem a bit petty, but they raise a fundamental question of this new medium: Who controls information in a space where open, easy and seamless access is fundamental, essential to the design?
In the physical world, copyright laws are the traditional protector of original material. They are based on the reasonable concept that creators have the right to profit from and control the reproduction of their works. You would think that these laws would easily extend to online creations.
Some aspects of copyright law are, in fact, unperturbed by the rise of electronic media. For example, original newsgroup postings, web pages, link lists and graphics are all copyrighted. There is little dispute over this issue. Whether you put a copyright notice or not on your web page or newsgroup posting, it is still copyrighted under the tenets of the Berne convention.
In some ways, the scope of copyright law is actually far broader in the online world since copying is such an integral part of electronic communications. The courts have held in several cases that copying doesn't just mean saving something to disk, but also holding information in memory. Thus, viewing a web page in your browser falls under copyright law.
But Richard S. Gruner, a professor at Whittier Law School in Los Angeles, said there is a counterforce to this broadened reach of copyright law that has muddied the waters. It is based on the idea of implied public access. Web sites are meant to be viewed, and unless they are protected by a password or blocked in some way, their creators are implying that they approve of others accessing the information. In other words, they have given the public a limited authority to copy their page.
Total News offers visitors links to a wide variety of news sites, including CNN, CBS, Fox News, Reuters and USA Today, but in frames that are bordered by Total News's own advertising. The problem here lies in trying to determine the range of this license. Most people would probably agree that taking a story from The New York Times or grabbing a pretty Power Goo image and putting it on your server to display on a web page is an infringement of someone's copyright.
But the technology of the Net is such that you don't really have to copy something and save it on a disk to actually display it. For example, instead of specifying a graphic on your own server, you could just link to that nice Power Goo graphic on someone else's page and use it as if it were an embedded element of your own page. You haven't made any copies, only pointed toward the original.
The use of browser frames has further expanded the power of users, allowing them to extract whole web pages without copying.
The Washington Post, The Los Angeles times and other news organizations have a lawsuit pending against a web site called TotalNEWS, which is a list of links to news-related sites. When you click on a link, the target site opens in a frame. Outside of the frame are advertisements sold by TotalNEWS.
In the real world, a person putting out a repackaged mega-newspaper of every article in The Los Angeles Times, Washington Post and other papers would be in lawsuit hell for centuries. But in the open, fluid and hypertext world of the Web, it is a much murkier issue.
In some ways, it could be argued, TotalNEWS is providing a reasonable service by combining all major news sources in a single, seamless site. The company is also helping news organization by directing additional traffic to those sites. Web designers strive for this integration. The very nature of hypertext links encourage this type of seamless design.
On the other hand, what gives TotalNEWS the right to profit from the work of The Los Angeles Times, the Washington Post and others?
David Post, co-director of the Cyberspace Law Institute and a professor at Temple University, said that for commercial disputes, a stronger protection for creators is offered by trademark law, which is intended to prevent companies from confusing and deceiving consumers.
In the case of TotalNEWS, would readers infer that the site had a formal relationship with the The Los Angeles Times? Does the use of the newspaper's work dilute or alter the image created by The Los Angeles Times over all these years? Would readers be confused as to the source of the news stories popping up in the TotalNEWS frame?
I suspect that most users would probably answer yes to all those questions. But TotalNEWS could reasonably argue that web surfers are used to the idea of frames and have no problem separating one site and another. The whole purpose of links and frames is to view other sites in a convenient fashion.
The Ticketmaster/Microsoft case seems to strike at the other end of the access spectrum by seeking to define the rights of creators over simple hypertext links. In some ways, it is a far clearer case than that of TotalNEWS. Seattle.Sidewalk marked most of its links to Ticketmaster as pointing to an external site. It did link to some event listings deep inside Ticketmaster's web site, but the pages were presented as Ticketmaster pages and were not displayed in frames.
While Ticketmaster has a valid point that as the creator of a site, it should have some degree of control over how its information is used and who should profit, the technology and custom of the Net has undermined its arguments to a large degree.
As more of these conflicts arise in the future, technology may provide the easiest path toward a solution. Ticketmaster, for example, put up a blocking page ("This is an unauthorized link and a dead end for Sidewalk") that greeted and people coming from the Microsoft site. It could also make its site password protected, although it would no doubt suffer a loss of traffic (and thus revenue) by adding the extra hassle of logging in.
The courts will undoubtedly also clarify these issues in the future and, as more people migrate to the Web, there will evolve a firmer sense of what is acceptable behavior.
But in the end, there may be no simple way to translate certain rights of the real world to cyberspace. While the virtual world has brought a new range of powers to create, it has also mutated the meanings of ownership and reproduction. For better or for worse, it may be that they will have no meaning at all.
MIND & MACHINE is published weekly, on Wednesdays. Click here for a list of links to other columns in the series.
Related Sites
Following are links to the external Web sites mentioned in this article. These sites are not part of The New York Times on the Web, and The Times has no control over their content or availability. When you have finished visiting any of these sites, you will be able to return to this page by clicking on your Web browser's "Back" button or icon until this page reappears.
Ashley Dunn at asdunn@nytimes.com welcomes your comments and suggestions.
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