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Tuesday, May 14, 2002

Goldly Blowing

Declan McCullagh has a piece today in Wired News about a dispute between Rodale Press (Runners World) and, concerning a link to a "printer-friendly" version of an online article. [Via Politech] Note that the initial cease and desist letter reported by (May 10) characterizes LetsRun's conduct as a republishing of the article, "verbatim, without permission," and that the follow up letter (May 13) instead focuses on the hyperlink. (First time I've seen the print journalism term "below the fold" applied to a Web site. Now, does that mean you have to scroll down the initially viewable screen to get there? In what browser/OS? At what screen resolution?) I'm assuming Arnold Kling, Ernie and perhaps Central District CA Judge Hupp may be with me on this one: Caveat Web Publisher. It's hard to see where a bare hyperlink is "copying." If you set up a Web site with hyperlinks which bypass or avoid advertising, and which are viewable in a browser address bar, a mouse-over or otherwise are offered up by your very own site, you have little basis for surprise or outrage if they get used. If you are concerned about this, and are unwilling to rely on the etiquette of other sites (see below), then don't set up your site this way. (Apart from the missed advertising free sites may seek to avoid, subscription-only, paid sites should pay attention to whether they are providing links that let visitors navigate past the toll booth.) Sadly, none of Judge Hupp's comments in the v. Ticketmaster case made their way into a published opinion that would be citeable as precedent (he denied a request for preliminary injunction, more in my article here), and even if they had, district court opinions do not constitute terribly persuasive authority in other jurisdictions. Here's Declan's follow-up on Politech with comments from OSDN Editor in Chief Robin Miller, about the policy of Slashdot and other OSDN sites to "link to ad-laden pages on commercial sites instead of directly to images or to pages that do not allow their publishers some benefit from our link to them," as a matter of good netiquette and mutually beneficial practices, rather than one of legal stricture. And, here's some of the "lively response" Declan's article mentions from, who says "[W]e Have No Legal Team," and that its accuser's site made use of some of its material: "We want to thank your lawyers for letting us know about this great potential revenue source. We were struggling to make ends meet, train for the 2004 Olympics full-time, and operate all at the same time. Thankfully your magazine, a major force in the running community, has come to our rescue. We will definitely give you praise if we make the 2004 Olympic team. Thank you for your support." [Via] (Before jumping in with an "aha, I told you so," remember this is a little different from a lawyer writing with the Internet as a forum for public opinion in mind.)

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