Way back in 2007, we wrote about a Canadian business man/politician, Wayne Crookes, who was suing a bunch of websites, including Google, Yahoo, MySpace and Wikipedia, because he was upset about what some people had posted about him on those sites, claiming it was defamatory. We found it odd that he was suing these companies, rather than the individuals who supposedly posted defamatory material (oddly, many of the stories that he claimed were defamatory were about him supposedly filing defamation lawsuits!). In some cases, it reached ridiculous levels, such as the fact that the same guy also sued Jon Newton, the operator of P2Pnet.net for merely linking to text that Crookes considered defamatory.
It was troubling enough to sue a company that was hosting a conversation where someone may have said something defamatory, but to take it to another level, where someone merely linking to the actual text as a part of reporting on it was also accused of defamation could have a serious chilling effect on free speech and open communications in Canada. Luckily, last year, a Canadian court found that merely linking to potentially defamatory content is not defamatory. Apparently that ruling was appealed... and the appeals court has agreed that linking to defamatory content is not, itself, defamatory. This is a big win for free expression in Canada. The case could still be appealed, and some are noting that the appeals court ruling still had some problems. There was a dissenting judge who seemed to think that because people may have clicked on the link, just putting up a link was the equivalent of publishing the content on the other side of the link (yikes!). That last link also discusses some other serious problems with libel law in Canada (similar in some ways to the problems in the UK), which is in desperate need of a modern update.
A few weeks ago, after the AP announced its plans to crack down on people who it felt were linking/excerpting too much, we suggested that Reuters should speak up and respond to the AP's position by encouraging linking and sharing of news. It appears that Chris Ahearn, President, Media at Thomson Reuters, has taken us up on the offer, writing a nice little manifesto: Why I believe in the link economy. And, of course, helping to prove that, he linked to a bunch of other sites -- including our original blog post asking him to make a statement just like this (in contrast, by the way, while I've been quoted multiple times by the AP, I'm pretty sure they've never linked to Techdirt in an article). His post is pretty much exactly what I'd hoped Reuters (or others) would say (though, Ahearn is better at being diplomatic about the AP). Here are some key excerpts:
The Internet isn't killing the news business any more than TV killed radio or radio killed the newspaper. Incumbent business leaders in news haven't been keeping up. Many leaders continue to help push the business into the ditch by wasting "resources" (management speak for talented people) on recycling commodity news. Reader habits are changing and vertically curated views need to be meshed with horizontal read-around ones.
Blaming the new leaders or aggregators for disrupting the business of the old leaders, or saber-rattling and threatening to sue are not business strategies -- they are personal therapy sessions. Go ask a music executive how well it works.
Exactly. There's been too much misdirected blame placed on the internet, even though the internet has never been the problem. Not keeping up with what readers want is where the mistakes have been made.
I believe in the link economy. Please feel free to link to our stories -- it adds value to all producers of content. I believe you should play fair and encourage your readers to read-around to what others are producing if you use it and find it interesting.
I don't believe you could or should charge others for simply linking to your content. Appropriate excerpting and referencing are not only acceptable, but encouraged.
That's basically exactly what I had suggested Reuters say... so that's great. Once again, this makes me want to look for Reuters alternatives to any AP story I happen to come across.
Of course, I don't agree with everything Ahearn has to say, though I do agree with the overall spirit of what he's saying. He talks about the need to agree "on a code of conduct and ethics." I'm not against the concept, I just don't see how it's possible or even necessary. These things tend to sort themselves out. Players who are "bad actors" become obvious over time. Good players get rewarded for it, and you deal with some questionable players on the margin. Rather than worrying about what everyone else is doing, why not just focus on providing more value yourself?
Then there's this:
Let's identify how we can birth it and agree what is "fair use" or "fair compensation" and have a conversation about how we can work together to fuel a vibrant, productive and trusted digital news industry. Let's identify business models that are inclusive and that create a win-win relationship for all parties.
The thing is, the law says what's fair use, not any voluntary agreement. And "fair compensation" isn't determined by everyone chatting (that could be seen as collusion, actually), but in the market actually doing deals. I'm all for discussions on positive business models that are inclusive and create win-win relationships. That's why we highlight examples of that all the time around here. But I don't think discussing good business models means getting an entire industry to agree to use them ahead of time. For better or for worse (well, I'd argue for better), the world just doesn't work that way. The win-win business models are being developed already -- and that's great. Let's keep looking at those success stories, and pull out the important lessons from them -- but that doesn't mean everyone "agreeing" to things beforehand. Unfortunately, that's just not going to happen. There are too many vested interests to make it work. But the nice thing is that those who don't figure it out get swept out with the tide.
Somehow we missed this news last week, but Consumerist alerts us to the very upsetting news that BlockShopper was forced to cave in and settle the absolutely ridiculous lawsuit filed against it by Jones Day. The lawsuit was a clear abuse of trademark law designed to silence a small company, and it looks like the judge did everything possible to help Jones Day achieve its goal. I've spoken with a few Jones Day lawyers who have admitted (quietly, of course) that they're embarrassed their firm did this, but the details of the story seem to get worse with each new step. One thing that seems clear, based on this: Jones Day is not a firm worth working with.
If you don't recall the details, Blockshopper is a pretty basic site. It would post news about people who had bought property in certain cities, including Chicago. All it was doing was publishing public information, based on government records, about who was buying property in certain neighborhoods. Apparently, two Jones Day lawyers purchased homes in a part of Chicago covered by Blockshopper. So it wrote about them, and included links to the Jones Day website, indicating that's where they worked. This was accurate, factual information found through public sources. It was not a violation of anyone's privacy, nor was it a violation of trademark law.
However, Jones Day, as a big bad law firm, apparently had no problem suing Blockshopper claiming that it was trademark infringement to link to the Jones Day website, in part because Blockshopper deep-linked the individual's names in the post to their profile pages on the Jones Day website. That is ridiculous by any standard, and an obvious abuse of trademark law. It is simply not a trademark violation to link to a company's website using its name or the name of an employee at the firm -- and the folks at Jones Day obviously know this. But since they are a huge law firm, they can pressure tiny websites to obey. Even worse... the judge in the case helped out. Rather than tossing out the case immediately and reprimanding Jones Day, the judge supposedly told the operator of Blockshopper:
"Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?"
In other words, the judge wanted Blockshopper to cave. The case started to get some public attention, and a bunch of public interest groups, including Public Knowledge and the EFF filed briefs with the court. At this point Jones Day should have backed down and perhaps issued an apology for abusing trademark law to shut up Blockshopper. Instead, it asked the judge to not even allow the briefs from those groups, saying that because those briefs sided with one party, they were not legit. Apparently Jones Day is unaware that most amici briefs are favoring one side or the other. Stunningly, the judge agreed with Jones Day and refused to even look at the submitted briefs, and also refused to dismiss the case.
As we noted at the time, this would significantly increase the likelihood of Blockshopper settling, because it would (as the judge had noted originally) get expensive quickly. And, indeed, that's exactly what appears to have happened. Blockshopper has agreed to change the way it links to Jones Day, no longer using any anchor text other than the URL itself. As Slate explains:
There is simply no legal rationale for Blockshopper to agree to this. There is only the fact that it was going to get expensive to fight such a lawsuit and the judge seemed to clearly favor Jones Day, based on the events so far. Illinois does have a (relatively new) anti-SLAPP law, but it seems like we could definitely use stronger anti-SLAPP rules to stop this sort of abuse of the law to bully small websites. Anyway, you can see the "agreement" below, where Blockshopper agrees that it will not embed deep links to Jones Day's website:
It appears that GateHouse Media and the NY Times have settled their dispute over the NYT's Boston Globe linking to GateHouse's local events site with a snippet of the text (something GateHouse's own sites did as well). GateHouse had little to no chance of winning in court, but it looks like the NY Times totally caved in to avoid having to deal with a long and costly lawsuit. The result is pretty much bad for everyone.
It's bad for the NY Times, because in settling they've almost guaranteed that plenty of other companies will now come seeking similar "settlements." It's bad for GateHouse Media because in winning "the battle" they're losing the war. The NY Times/Boston Globe will no longer be sending them the traffic they were getting in the past. It's hard to describe the level of pure cluelessness that goes into actively turning away the kind of traffic a major media publication can provide. It's bad for readers of both sites, because it limits the usefulness of the content they get. And... most importantly, it's bad for everyone in failing to have a hard and fast precedent set that linking to such sites and including the headline and a snippet are clearly fair use. What a shame.
One of the more ridiculous lawsuits we saw last year was smaller newspaper chain GateHouse suing the NY Times for linking to its site with a headline and brief excerpt on the Boston Globe website. Romenesko points us to news of the NY Times response, which seems pretty damning for GateHouse. Specifically, they show emails from GateHouse officials pointing out that identical activities are clearly fair use, and another email where GateHouse tells one of its own sites to immediately stop doing the exact same thing that it's accusing the NYT of doing. In other words, GateHouse pretty clearly knows that an excerpt, a headline and a link are fair use -- but still went after the NY Times for doing the same thing it did.
Eric Goldman has submitted comments to the SEC explaining how its recent guidelines concerning the liability for companies based on links on their websites most likely violates the safe harbor provisions in Section 230 of the CDA. Section 230, as we've discussed over and over again, provides a clear safe harbor to protect third parties from liability for the actions of others. While we personally think it should just be common sense that third parties shouldn't be liable for the actions of others, it's been clear for way too long that common sense isn't really all that common.
In this case, the SEC indicated that some companies may be liable for content on third party sites that they link to, if the link gives the impression that the company has approved or endorsed the info. As Goldman points out, this appears to be in violation of the safe harbors, as no one should be liable for content they have no control over -- even if they indicate they might endorse that content.
You may recall the story of Wayne Crookes, a Canadian businessman who is active in the Green Party in Canada. In 2007, he sued Google, Yahoo, Myspace, Wikipedia and some other sites, claiming that all were liable for content that he found defamatory. It's somewhat interesting to try to follow the trail of what the actual libel is -- as many of the lawsuits for libel are focused on stories about (you guessed it) him filing for libel lawsuits (which certainly appears to be true, rather than libelous). With at least some of those lawsuits, the Canadian Supreme Court tossed them out, though over jurisdiction issues, rather than on the merits of the case.
In one case, Crookes sued the website P2PNet for just linking to the material that Crookes found libelous. It seemed like a huge stretch to say that merely linking to content (even if you grant that it was libelous) is also libel. And, the good news is that a court has now agreed. It has sided with Jon Newton, the operator of P2PNet in noting that simply linking to libelous material is not, in itself, libelous. The ruling does note that if the link text had been libelous, that might be a different story -- but just linking to the text as part of a discussion about the lawsuits is hardly libelous. This is definitely a huge win for free speech in Canada -- though, Canada could take a big step forward in updating its defamation laws to make it clear that the liability for libel should be on those who actually were libelous, rather than those who host it or point to it.
While we still need to wait for the end result of the YouTube/Viacom case to learn whether hosting infringing videos is infringement itself, there's another open question about whether or not linking to or embedding infringing videos is also infringing. It seems difficult to understand how it could be infringing, as it's no different than pointing someone to freely available content (and, technically, linking and embedding are no different at all -- it's just some HTML). The person (or computer) doing the linking or embedding has no idea whether the content being linked or embedded is infringing -- and it seems reasonable to believe that if it's available online, there's nothing wrong with linking to it.
Yet, here we have the MPAA suing two sites that both link to and embed various movies. The two sites in question, FOMD (Found Online Movie Database) and MovieRumor, don't host the movies themselves. They merely point people to various movies that are publicly available online. It would seem like a rather drastic stretch of copyright law to claim that is also infringement, but don't be too surprised at how this will be argued. The MPAA will play on emotional, rather than rational, arguments -- and it may actually work, given some similar cases in the past.
The MPAA has been aggressively suing websites that merely link to infringing content claiming that linking is "inducement" to infringe -- which appears to be an attempt to stretch the Supreme Court's Grokster decision beyond its intended meaning. However, when staring down the barrel of a big Hollywood Studio lawsuit, it's no surprise that some sites cave. The MPAA has happily announced that two more such lawsuits have been settled. These are actually consent judgments, meaning both sides agreement to the judgment, but also likely worked out a separate settlement. That way the MPAA gets to claim huge fines found in the judgment, but which the real settlement was probably much less.
A website based in the UK that linked to unauthorized versions of films and TV shows has been apparently shut down and the site's creator has been arrested for "facilitation of copyright infringement." This must be something similar to "inducing infringement" which is against the law in the US (as per the Supreme Court -- not any written law as of yet). However, it does seem a little silly to go after this guy. As long as he wasn't hosting any of the content and merely linking to it, it's hard to see why he should be charged with anything. The people who are breaking the law are those who are actually uploading the content -- yet in this day and age where so many people seem to think that it's the easiest person or company to find that should be targeted, it's no surprise that it's being shut down, even as the actual infringing content is still just as available as it was before.
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