Issues in cyberlaw

What online journalists

need to know

Biggest issues in cyberlaw

• Intellectual property law vs. the First Amendment: How do we safeguard citizens’ rights to protect the “intellectual property” they create with the First Amendment’s guarantee of freedom of speech and freedom of the press?

Intellectual prop. vs. 1st Amend.

• Key question for Web page designers: Can you legally link to any Web site you want to?

Intellectual prop. vs. 1st Amend.

• Key question for Web page designers: Can you legally link to any Web site you want to?

• Courts and case law:probably not!

Intellectual property

• What is intellectual property? Property that can be protected under federal copyright, trademark or patent law or common law forbidding unfair competition, including misappropriation.

Copyright

• Article I, Section 8 of the U.S. Constitution (ratified in 1789) gives Congress the power “to promote the Progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

• First U.S. copyright law passed: 1790!

• Last major revision: 1976

Copyright law

• Copyright law protects: Literary works, including computer programs

and test questions Musical works, both tune and lyrics Dramatic words, including soundtracks Pantomimes and choreography Pictures (photographs, cartoons, paintings,

drawings), graphics and sculptures Films and other audiovisual works Sound recordings

Trademark

• Definition: a “word, name, symbol or device” used by a manufacturer or seller to “identify and distinguish his or her goods … from those manufactured or sold by others and to indicate the source of the goods.”

• Examples: The apple on Mac computers The curvy shape of a Coke bottle The word Oscar as name of the Academy Awards statue The Playboy bunny symbol

Trademark

• Can be registered with the U.S. Patent and Trademark Office in Washington for 10-year periods and re-registered as long as the trademark is used.

Trademark

• The Lanham Act of 1946 protects trademarks from: Infringement: Use of a trademark by someone other than

the trademark holder, which could confuse consumers. Dilution: Use of a trademark in an unwholesome or

degrading context

Misappropriation

• Definition: The unauthorized taking of someone else’s investment of time, effort and money. Also called piracy.

• Examples: International News Service copying news accounts from

the Associated Press Radio stations “ripping and reading” verbatim accounts

from newspapers

Evolving law of linking

• 5 types of links have caused legal problems for Web site owners: Framing links Deep links Inline links Links to third-party material Links to content that infringes copyright

Framing

• What it is: Technique that lets Web page designers split Web pages into multiple regions that can be scrolled independently

• First became possible in 1996 with Netscape 2

• Generally innocuous

Framing

• Has provoked lawsuits when used by Web page A to link to and display the content of Web page B inside a frame or border that makes it look as if A generated the content that was actually produced by B.

Washington Post v. TotalNEWS.com

• Arizona-based Web site, TotalNEWs.com, was linking to stories on various news sites and displaying them, with the news organizations’ logos, inside a Web page frame that featured the TotalNEWS logo.

• The problem: Some of the news organizations thought it looked like the stories weren’t theirs.

Washington Post v. TotalNEWS.com

• February 1997: The Washington Post, CNN, Time, Dow Jones, Reuters New Media and other organizations sue, charging that TotalNEWS had: Misappropriated their content Infringed on and diluted their trademarks Infringed on their copyright

Washington Post v. TotalNEWS.com

• Results: TotalNEWS.com settled out of court and

agreed to stop framing the news organizations’ stories

The organizations dropped the lawsuit Most lawyers who advise Web site clients

urge them to avoid using framing links

Washington Post v. TotalNEWS.com

TotalNews Web site today

Deep links

• What they are: Linking to a page other than the home page, in other words to a page “deep” within the Web site

Deep links

• Has provoked lawsuits when they provide a shortcut that allows Web page users to bypass advertising on the home page or other early pages in a Web site

Ticketmaster v. Microsoft

• Microsoft’s www.seattlesidewalk.com, a guide to the city of Seattle, included deep links to the page in the Ticketmaster Web site where surfers could buy tickets to Seattle concerts.

• These direct links allowed surfers to bypass the Ticketmaster home page and other Ticketmaster pages that contained advertising.

Ticketmaster v. Microsoft

• The problem: Ticketmaster wasn’t recording as many page views as it would have if people directed to the site by seattlesidewalk.com had started at the home page.

Ticketmaster v. Microsoft

• April 1997: Ticketmaster sued, claiming: Microsoft had deprived Ticketmaster of the

right to control its trademark Microsoft had diluted Ticketmaster’s trademark Microsoft had falsely suggested an association

between Microsoft and Ticketmaster

Ticketmaster v. Microsoft

• Result: Parties settled out of court in January 1999 Microsoft agreed to link only to Ticketmaster’s

home page. Some scholars thought deep links could be

seen as violation of the Lanham Act, as part of federal trademark law that makes it illegal for businesses to knowingly create confusion over a trademark

Deep links

• “A great likelihood of confusion manifested itself when Microsoft transferred users to the ticket purchasing page within Ticketmaster’s Web site because users could reasonably believe that either the Microsoft and Ticketmaster sites emanated from the same source or that Ticketmaster sanctioned or sponsored Microsoft’s Seattle Sidewalk.com site.”

— Joseph A. Tontodonato

Deep links

• Web sites are finding ways to discourage deep linking through: User agreements:

http://www.latimes.com/services/site/lat-terms,0,6405230.htmlstory

Hiring vendors to charge Web sites that use deep links

Inline links

• What they are: Links to image files• Cause a problem when they are used to

bring into a Web page images that are copyrighted by some other person or entity

Kelly v. Arriba Soft Corp.

• Arriba Soft Corp. operates http://www.arriba.com/, a search engine that used to show thumbnails of search results.

• California photographer Leslie Kelly operates a Web site where he sells and displays his photographs of the American West.

Kelly v. Arriba Soft Corp.

• When someone searched for photographer Leslie Kelly on www.arriba.com, they would get low-resolution thumbnails of the photographs on his Web page.

• Double-clicking on those thumbnails would connect surfers, through an inline link, to image files on Kelly’s Web page.

• Kelly sued, claiming the inline links violated his copyright on the images.

Kelly v. Arriba Soft Corp.

• February 2002: U.S. Court of Appeals for the Ninth Circuit ruled the thumbnails didn’t violate Kelly’s copyright, but the inline links did.

Third-party links

• What they are: Connections made between one Web page or trademark and some online content by someone not affiliated with the company that owns the trademark or the online content.

Third-party links

• Typical case Joe, owner of Web site A, builds a home page

and because he’s such a fan of Coca-Cola, he uses the trademarked Coke can on the page. That’s risky enough, but he compounds the problem by providing a link from his home page to his favorite porn page.

Coke may sue, charging that Joe has tarnished the Coke trademark by linking it to porn.

Links to illegal content

• What they are: Links to Web sites that contain content that, typically, infringes on someone’s copyright.

Universal v. Reimerdes

• DVDs use technology called the Content Scramble System to keep people from illegally copying copyrighted movies.

• In 1998, Congress passed the Digital Millennium Copyright Act, which made it illegal to “traffic in” technology that let people overcome copyright protection technology.

Universal v. Reimerdes

• In the late 1990s, Norwegian teenager Jon Johansen developed De-Content Scramble System (De-CSS) technology, which allowed decoding and copying films.

• www.2600.com, the online site of the print hacker magazine 2600, wrote a story about

De-CSS and linked to a copy of the code.

Universal v. Reimerdes

• December 1999: Eight movie studios sued www.2600.com, charging link to De-CSS violated Digital Millennium Copyright Act

• Court ordered 2600.com to remove the link to the code.

• 2600.com did but appealed the ruling, saying linking to illegal content wasn’t the same as posting illegal content.

Universal v. Reimerdes

• 2000: U.S. District Court for the Southern District of New York ruled against 2600.com, saying linking to illegal content was as bad as posting it

• 2600.com appealed that ruling• 2001: U.S. Circuit Court of Appeals for the

2nd Circuit ruled against 2600.com, saying linking to illegal content was as bad as posting it

Universal v. Reimerdes

• Questions: Is linking to illegal content more like reporting

where something illegal is happening or more like doing something illegal?

What are the implications of the ruling for mainstream journalists?

Universal v. Reimerdes

• Questions: Is linking to illegal content more like reporting

where something illegal is happening or more like doing something illegal?

What are the implications of the ruling for mainstream journalists?

Bottom line

• Don’t frame someone else’s content in a way that makes it look like it’s yours.

• Be careful about linking from a commercial Web site to a point deep inside a commercial Web site.

• Don’t plant inline links to copyrighted images on your Web page.

• Don’t tarnish a trademark by indirectly linking it with distasteful content.

• Don’t link to illegal content.