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Monday, April 22, 2002

Bajahhh Just returned from a few days in Baja California, which, if you haven't been, is much like Mars, only warmer and less red. Cream and russet are the hues of choice in a region that is six parts geology lesson, and, closer to Cabo San Lucas, two parts golf, one part strip club and one part sport-fisher paradise (actually, the last two may be interchangeable). My favorite area is up the Sea of Cortez side, toward La Paz and beyond. There, precipitous mountainsides drain to the coast by the most numerous and efficient means, and tracks crossing the occasional plateau barely resist forming Nazcan figures. Flood plains of cracked sand speak of bygone hurricanes. The sea engulfs the land in aqua shallows that plunge to immediate blue depths and form a massive, shifting foundation for the comet-tailed whitecaps and pangas skidding above. Just such a view accompanied my airborne read of Michelle Delio's article in Wired last week. The piece emphasizes how linking issues keep coming before judges who struggle to resolve them on a case by case basis with the help of common sense but scant precedent. The comments to Ernie's post illustrate some of the perspectives, and most are in line with Judge Harry Hupp's reasoning a couple of years ago that deep linking is "analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently," and as such would not involve copying at all. Judge Hupp also noted that even when a link does copy its source (such as when data is not merely referenced but reproduced), a court should consider whether only unprotected factual information is involved, and whether the fair use doctrine may permit the use. Judge Hupp's orders in Ticketmaster v. never became part of a published opinion though, and decisional authority remains scarce. It would be nice if Dr. Bechtold would update his link controversy page, as he was doing a nice job keeping track of pending cases and scholarship worldwide, but he seems to be taking a break. If anyone else has tackled this task, I'd appreciate hearing about it.

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