US case calls future of Web linking into question

As Roman Godzich sits at his computer in a cramped storefront behind Lulu's Tacos in sunbaked Gilbert, Arizona, he's on the prowl for the next news site to link to from his virtual newsstand, TotalNEWS Inc. He's hoping it won't be his last.

Godzich is at the center of a momentous copyright lawsuit pitting six media powerhouses against his five-man startup over the unauthorised use of Web hyperlinks. Court action was postponed Friday for the third time since mid-April while the parties attempt to settle.

The Big Media Six - Dow Jones & Company Inc., Cable News Network Inc., Times-Mirror Co., The Washington Post Co., Time Inc. and Reuters America Inc. - in late February sued TotalNEWS in the U.S. District Court in New York, claiming it republishes the vendors' content for profit and therefore is guilty of copyright infringement. TotalNEWS links to more than 1,400 news sites worldwide using frames technology, a controversial means of linking within a frame, usually studded with banner advertisements.

"Our position is we object to the unauthorised combination of linking, framing and advertising against our clients' content," said Bruce Keller, an attorney at Debevoise & Plimpton in New York, who represents the Big Media Six.

As attorneys' fees mount and Web advertising banner prices drop, TotalNEWS is feeling the financial brunt of the lawsuit's impact.

"We're not able to get a level playing field because we don't have the financial wherewithal to defend ourselves properly," Godzich said. "When you go to court there needs to be a lot of discovery. Discovery costs a lot of money. We don't have a lot of money."

Despite hundreds of supportive E-mails, pro bono legal advice and financial contributions to its legal defence fund - aided by a trade organisation called INPUT - TotalNEWS still faces more than $250,000 in legal bills, Godzich said.

At stake in the suit is whether linking from Web site to Web site - the Web's raison d'etre - will continue unregulated, and whether Web site proprietors would have power to control links to their sites.

Some Internet commentators say the decisions over linking could have a chilling impact on the way the Internet operates. The TotalNEWS case is the first legal salvo fired in the U.S. at the once-freewheeling Web that has the potential to redefine linking.

Two possible results of the case include linking licenses and linking agreements. Some lawyers already are drawing up simple linking agreements that spell out parameters for a two-way link, including the duration of the pact and presentation of logos. So far, no money changes hands with the agreements.

"Especially large companies want to be cautious and use linking agreements," said John Delaney, an attorney at Morrison & Foerster in New York, who represents multimedia companies. Several of his clients, whom he declined to name, have already signed such agreements.

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