A Danish Court hearing an appeal of a News Paper against a
search engine site has objected to the deep linking to the articles in the
news paper site.
The decision of the Danish Court is likely to generate a
big debate on whether "Deep Linking" is a form of Copyright violation and if
so what are the rights of the Copyright owner that are being infringed.
What will also be under debate is whether "Deep linking" is
a fundamental nature of the web that cannot be altered without altering the
basic existence of the Cyber society.
The Case in Brief:
Danish Newspaper Publishers
Association (DNPA) Vs Newsbooster.com
Newsbooster.com is a web based service
which offers a "Key word based search facility". When an user enters a "Key
word", he is presented relevant articles in various web news papers with
hyperlinks. A copy of the article will be e-mailed on request for a fee.
According to the DNPA, Newsbooster
repeatedly and systematically reproduces and publishes the Principals’
headlines and articles.... Newsbooster has a commercial interest in this
business. As a consequence of Newsbooster’s use of deep-linking, Newsbooster’s
users are taken directly to the Internet media’s newspaper articles and bypass
the front pages of the said media. To a certain extent, ..
media’s advertising revenues are reduced.
The Court on consideration of the arguments presented has
opined that the Newsbooster’s use of a search engine and the
distribution of electronic newsletters with deep links to articles in the
Principals’ Internet newspapers conflicts with fair marketing practices and
therefore contravenes section 1 of the Danish Marketing Practices Act.
An injunction has therefore been granted on the service and
DNPA must now present the case to the Danish
Maritime and Commercial Court within the next two weeks to confirm the
original injunction, an action the association plans to pursue, according to
its statement.
The type of service offered by Newsbooster is available in other countries and
is definitely a consumer friendly service which harnesses the basic nature of
Internet media which enables document to document hyper linking.
In the US, so far Deep Linking was considered acceptable
following the ruling in the case of Ticket Master Against Microsoft in which
tickets.com's right to deep link to Ticket master's content was upheld. The
objections of the Courts in US were restricted to cases where the
Copyrighted material was displayed by framing it in a manner that
misrepresented the source of content. (Kelly Vs Arriba).
Even though many legal experts consider that the
Newsbooster case may not have broad legal application outside Denmark, as the
Court ruling is on specific issues of the case, naavi.org considers this
as capable of being turned into a monster that can destroy the fundamental
utility of the Web as a "Content Sharing Media".
In order to better understand the issues involved, it would
help if we get deeper into the service offered by Newsbooster.
The Service:
According to the concept of the service described by Newsbooster.com on its
website,
Quote:
Newsbooster.com is the provider of a dynamic searchagent technology for
business users. ..Its Personalized Business Intelligence Solution for
enterprises who want to be updated about their Markets, Competitors, Customers
and Products... provides up-to-the-minute business news, analysis and
information from over 3000 freely accessible mainstream and specialist Web
sites. For the price of .. 199 EUR per year, the user can access a fully
personalized news service based on personal keywords."
"Newsbooster.com's dynamic searchagent technology
transforms the high value dynamic Web into an enterprise class information
solution," says Anders Lautrup-Larsen, Newsbooster.com CEO and President.
Newsbooster.com continually extracts valuable dynamic news
and information headlines from over 3000 freely accessible online sources. It
indexes over 3000 high quality online sources, including all major news
sources, subscription based specialized industry publications, announcements,
research group reports, press releases, white papers, and company websites.
Additional customized sources can be indexed on the fly in response to
consumer requests. The professional solutions include the possibility to add
internal comments to the news.
Using XML content profiles, Newsbooster.com filters dynamic
content based on any number of variables including topic, keyword,
demographic, or type of information to deliver the most relevant news
intelligence without any unnecessary or unrelated information.
Unquote:
Awards
The professional panel of the Canadian Web Award have given
Newsbooster the 2002 Web Award for providing a VERY GOOD CANADIAN FRIENDLY,
informative web site. The site has also been a winner of the prestigious
Golden Web Award 2002-2003
Newsbooster's Link Policy:
Newsbooster has declared the following link policy on their
website:
Newsbooster believes that links are the heart of the World Wide Web. The
ability to jump between sites, bookmark pages, and go directly to a specific
page is part of the web's core technology.
However, some publishers are trying to prevent others from linking to
otherwise freely accessible public areas of their sites. The legal battle
over so-called "deep links" has just begun.
The Newsbooster Link Policy makes no judgment about the deep link
policies of others. Instead, we affirm the importance of linking and
explicitly permit deep links within our sites.
-
Newsbooster provides and encourage links to any public
page, as long as the linked page does not appear within a frame.
-
Newsbooster respects any website business model, like
Advertising, Micropayment, Subscription etc.
-
Newsbooster does not copy, or save cashed versions of
the content in our internal databases
-
Newsbooster does not link to other sites within frames
without expressed permission from those sites.
-
Newsbooster does not link directly to Pictures, PDF, MS
Word Documents or any other format that does not appear as a website or is
taken out of its context
-
Newsbooster respect the option to prevent search
engines from deep linking to a specific page. Simply include the following
meta-tag code in the HEAD part of the page:
<META NAME="Robots" CONTENT="INDEX,NOFOLLOW">
-
Newsbooster will attribute external links to clearly
indicate that they are on a separate web site.
-
Newsbooster will attribute external links to clearly
indicate the sourcename (owner/name) of the website.
-
Newsbooster respect content ownership and will not
knowingly plagiarize content from other sites. (Due to
Open Content
Licensing and contributors who freely distribute their original
material to multiple sites, material may occasionally appear on more than
one site.)
-
Other sites may reprint or copy this policy.
If there is no "Hyper link, there is no Virtual Asset"
There is a broad acceptability on the principle that "World
Wide Web" exists because of the basic technology of "Hyper linking".
Remove "Hyper linking", then there is no world wide web. At
best there will be the olden day "Ftp archives" from which you can down load
files and read from your computer.
What "Hyper linking" does is to create a "Cyber Space"
where one can browse through documents without down loading the information
(except in cache memory) on to the computer. The cache is a technology
requirement and files get stored and erased in cache automatically and not
with conscious intervention of the user each time.
Any person who enters the Cyber space with an intention to
place their documents there including the publishers of the DNPA group are
doing so for their personal commercial benefit knowing fully the implications.
They are also foregoing the technical tools that can make their content not
viewable directly from a hyperlink by placing the files behind a firewall
accessible only through the home page link.
Since hyper linking is the fundamental nature of the
society in which the virtual property (Content) is situated, if "Hyper
linking" is to be barred, it will automatically diminish the value of
the virtual property to zero. Hence "hyper linking" per se is beyond the scope
of dispute.
It is an Advertisement for which reverse Payment is Due
The objection to deep linking therefore stems from only the
consideration of the "Bypassing of Advertisements" on the home page.
This argument is a weak anti consumer argument. Again the
publisher has the option to prevent this as has been indicated by Newsbooster
itself in its link policy. The procedure can be considered as simple enough
for any web publisher to follow. An useful consumer service should not be
prevented solely for the purpose of protecting an imaginary Advertising
revenue of the publisher.
It can also be rightly argued that the service is
instead of depriving the publisher of revenue is actually providing him a free
publicity that can boost his ad revenue from the linked page. Every news
letter of News booster is an advertisement for the publication and there is a
"Notional Payment of Consideration" that is getting passed from Newsbooster to
the publication. While link displays from the search page is worth
around US $ 10 per mille (Average advertisement rates for text links),
the news letter links should be valued at around US $ 200 per mille (Average
advertisement cost for direct electronic mail to a value added opt in mail
group).
Without the Newsbooster advertisement, it is possible that
many readers would never have visited the publication site directly and hence
the argument that there is a revenue loss in terms of advertisements to the
publication by services such as Newsbooster is fundamentally flawed.
There is also a fundamental question that "Linking" is only
placing a pointer. It only provides an address where the document is
available. The title to which the link is provided is itself only a
"Mark of Identification". Unless the content is reproduced beyond a reasonable
summary, hyper linking cannot be held as "Theft of Information". There is no
erosion in the value of the "Copyright Subject" as a result of the linking.
Also the distinction between "linking" and "deep linking" itself is artificial
since each document on the web is an independent document with a distinct URL.
Whether you follow links to reach a document or type the URL directly or use
book marks is a matter of personal choice. It is like taking a direct ticket
from Delhi to New York vs taking series of tickets from New Delhi to
Frankfurt, Frankfurt to London and London to New York.
Hence unless a Court can also say that "No Reader of a News
Paper Should be allowed to read the inside pages without seeing the front
page" and "No TV Viewer should surf the channels when an ad break is on
during a TV programme", it cannot also say that "Deep Linking" bypassing the
home page is an infringement of copyright. The infringement issue only comes
when in the process of deep linking (or hyper linking) the authorship of the
underlying material is deliberately misrepresented for pecuniary gain.
The case is an important landmark and we need to follow the
developments keenly. Newsbooster has taken the right decision to contest the
injunction and all freedom loving Netizens who value the existence of the
Cyber Space and its fundamental freedom of hyper linking should support its
cause.
Naavi
July 10, 2002
Related Article:
Newsbooster.com updates
Deep Linking Lunacy
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