If the context isn't a Web page, can you legally hyperlink?

If the context isn't a Web page, can you legally hyperlink?

Summary: Although Jared Benedict has gone to some lengths not to characterize a letter he received as a nastygram, he and Jon Udell have apparently received the equivalent of take-down notice from the producers of This American Life (one of my favorite National Public Radio-broadcasted programs).  The letter threatened legal action.

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TOPICS: Browser
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Although Jared Benedict has gone to some lengths not to characterize a letter he received as a nastygram, he and Jon Udell have apparently received the equivalent of take-down notice from the producers of This American Life (one of my favorite National Public Radio-broadcasted programs).  The letter threatened legal action. 

What had to be taken down? Context really doesn't matter. If the URL exists, you must acquit. It appears as though Udell and Benedict were pointing to This American Life-hosted MP3 files from some RSS feeds they had set up.  In other words, although the RSS feeds may have been emanating from domains within their control, Udell and Benedict were only pointing to MP3 files hosted in another domain.  They were not re-hosting those MP3 files.

Most people don't know or understand the underlying mechanics behind podcasts. Nor should they.  But understanding them is critical to figuring out if there's a new legal test that podcasters and potential podcasters need to be familiar with.  People usually take deliver of podcasts in one of two ways. They either download them manually much the same way they'd download any other MP3 through their browser or they use a podcasting client (also referred to as a podcatcher) to automatically retrieve the MP3s for them. 

I use the terms "podcasting client" and "podcatcher" very loosely.  Some software is dedicated to podcatching.  Other software, particularly RSS reading software, just tacks podcasts on as another supported form of content (in addition to the text that normally comes through RSS subscription).  Much the same way you  point your RSS reader at some RSS feed to subscribe to it, you point your podcatcher at an RSS feed that, with each item that comes through it, includes the direct URLs to audio files on the Web.  Here at ZDNet, the URLs (to the audio files) that we send through our podcast feeds are the same exact one that we provide in the text of the associated blog entries.  For example, if you examined the RSS feed for ZDNet's IT Matters series of podcasts, you'll see that the URL it points to for my MP3-based interview of Doc Searls is  same URL as the one I pointed to from the blog entry that discusses that interview (where I say it can be downloaded manually).

In our case, not only are we the producers of our podcasts, we also host them.  So, no big deal.  But what if you're neither the producer nor the original host of an MP3 file? Much the same way there's nothing that prevents me from pointing to any offsite URL (MP3, or not) from one of ZDNet's Web pages, there's nothing that physically prevents me from doing what Udell and Benedict did: point to MP3s hosted by someone else from their own RSS feeds.   But is there something that legally prevents me from doing that as is suggested by the takedown letters?

Personally, I think not. Since all RSS feeds are also viewable with a Web browser (it's not a friendly view, but it's a view), you can argue that consumption context (browser vs. a podcatcher) is a user choice, not a publisher choice.  So, if if it's OK to publish the URL in browser-viewable HTML, it should also be OK to publish the URL in browser viewable XML (how RSS feeds are encoded).  Need more precedent? PDFs are not HTML.  The architecture isn't all that unlike podcasting.  An additional technology above and beyond something capable of understanding HTML (in PDF's case, a plug-in), is required to complete the content consumption process. Yet people point to third-party URLs from PDFs all the time.  It's a slippery slope. If the lawyers tell us we can point to a link from HTML, but not from XML, what's next.  Will they start to tell us we can't point from PDFs too?

Context really doesn't matter.  If the URL exists, you must acquit.  Otherwise, if you're putting MP3 files on the Web and you don't want someone pointing to them from the contexts of their choice, then, instead of sending takedown notices to that someone, take down the content itself.  That way, nobody will point to it.

Topic: Browser

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  • probably is a copyright violation

    I am not a lawyer, but I suspect this one does cross the line. If you link to a MP3 file, it will download directly. The URL doesn't show up in the browser address line, so there's no indication at all that the MP3 is coming from another site.

    Linking to a PDF could be problematic, since the browser address line isn't really a place that most of us would look. But a published PDF should have its own owner identification and copyright notice.

    Best practice would be to link to [i]This American Life[/i]'s RSS aggregation page. Not perfect, but it's at least making it visible whose page you're linking to.
    diane wilson
    • what they put these MP3s on the server for anyway

      why the guys at This American Life wont just DRM the whole MP3 or even better wont stop putting that MP3s on the publicly available server at all ?

      i am kidding. but generally author can always add some short intro, just a couple of words about the owner/copyright/etc.
      ard1
    • And this is different from a search engine...

      how? When you see text on a search engine page, where did it come from? Not the search engine. Just because we're trained to know what a search engine is and just because XML feeds are foreign to most people doesn't mean we grandfather certain things in to the club.

      db
      dberlind
      • Search engines have opt out

        If someone would prefer to not have a search engine spider their site, they may do so using the appropriate mechanisms. NPR has done the equivalent of a robots.txt file to your pals. They need to respect that. If Google ignored robots.txt, you would throw a temper tantrum, and so would everyone else.

        How would ZDNet feel if their bandwidth was being sucked up by people downloading multimedia, but not actually viewing the HTML pages that generate ad revenue? I am sure that your advertisers would really like that.

        There is plenty of court precendent about hot linking. This is what your buddies are doing. They are hot linking. Respectful content creators point to the original page that links to the content, they do not link directly to the content. That's called "playing nice." If your buddies have a business model that involves hot linking or cannot play nicely, then maybe they should revaluate their business ethics.

        Not only does hot linking waste the original provider's bandwidth while depriving them of page views, but it also misrepresents the source of the content as well; many people will not realise or see the attribution, or forget it, if it even exists.

        Face it, your friends are in the wrong, and NPR should be the ones posting big public blogs about how they are being wronged, not you.

        J.Ja
        Justin James
        • Re: Search engines have opt out

          [i] If Google ignored robots.txt, you would throw a temper tantrum, and so would everyone else.[/i]

          Point taken on the opt-out. It's really not like search engines for the reason you gave.


          [i]How would ZDNet feel if their bandwidth was being sucked up by people downloading multimedia, but not actually viewing the HTML pages that generate ad revenue?[/i]

          Personally I think that's too damn bad. Lots of people use personal proxies to delete the ads from web pages they view. Is ZDNet going to sic its lawyers on them? Also, as David said in his piece, one can simply enter the XML URL into his podcatcher and automatically scan the URL and download new podcasts on a schedule. No page views there, either. Should the podcasters sic their lawyers on people who get the podcasts programatically instead of manually surfing to it and viewing ads along the way?


          [i]Not only does hot linking waste the original provider's bandwidth while depriving them of page views, but it also misrepresents the source of the content as well; many people will not realise or see the attribution, or forget it, if it even exists.[/i]

          Now that's just crazy. Misrepresentastion is an affirmative action. If you attribute correctly, the fact that someone forgets it later doesn't translate into misrepresentation by you.



          :)
          none none
        • "buddies"

          Nice move. I like how you imply that David is merely trying to help his friends or has a bias by repeatedly referring to those linking to NPR as his "buddies".
          adam_odonnell@...
        • My friends?

          I have a great deal of respect for Jon Udell and he and I have met each other in person a couple of times and traded emails occasionally. I don't believe I've ever met or corresponded with Jared. There's a business model here and the question is whether or not Benedict and/or Udell are wrong to bypass it using the techniques they did. We have people linking directly to our MP3s already, outside of environment. Doc Searls did it yesterday. He is NOT going to get a letter from me or anyone else here.

          I think the more important question here is about the legal precedent and innovation. Look at podbop.org. That's innovation, if you ask me. You put your city, state in, and it comes back and tells you 1. what bands are playing in a club near you soon, and 2. links you directly to their MP3s,.. .and if that's not enough, it creates a podcast feed that includes the links to those MP3s. In podbop, Taylor McKnight and Daniel Westermann-Clark just innovated an extraordinary amount of friction right out of a system that was saddled with friction.

          Any legal precedent that suppresses the usage of links in any context will completely stifle innovation and the entire basis of the Web. It's reprehensible to me that someone might try to steal content from NPR or This American Life. But that's a separate issue from the legal precedent that's potentially being set here.

          db
          dberlind
          • RE: "buddies"

            Hope you noted the sarcasm intended.
            adam_odonnell@...
          • Hyperbole

            "Any legal precedent that suppresses the usage of links in any context will completely stifle innovation and the entire basis of the Web."

            I agree as a general rule, but I cannot agree with this as a blanket statement. There could conceivably be some very narrow contexts that seem justifiable. But even if we both disagreed vehemently with a legal precedent that carved such a very narrow exception, I can't see how we could seriously say that it completely stifled innovation. Do you honestly believe that such a narrow decision would mean that innovation on the web would die completely the moment of the decision?
            wresnick
          • Yes, I do

            The World Wide Web is a friendly word for World Wide HTTP and HTTP is the protocol of hyperlinking. If we have to check the legal linkability of every link , the Web is dead.

            db
            dberlind
          • I had a reply...

            ... but your software ate it. I suspect that it hates percent signs in the subject.

            Let it suffice to say that you are incredibly wrong about links and HTTP on a technical level. About as wrong as possible. HTTP does not give two figs about "links" and is just a data transfer mechnism with some meta data attached to it. The Web does not even "need" HTTP; it could work just as well (for static Web pages) using anonymous FTP. HTML is what "cares" about "links". I am astounded that you made this kind of fundamental error.

            J.Ja
            Justin James
        • Re "waste the original provider's bandwidth "

          provider can use publicly accessible reverse proxy servers like one at http://proxy.gomyplace.com
          in which case bandwidth costs nothing.

          Re "misrepresents the source of the content as well": provider can add intro to the file (or even ads in the background)
          ard1
    • No copy is made hence no copyright infringment

      Just my 2 cents.
      voska
      • Yes, there is

        If you download it, you've copied it.

        The issue here is pretty straight forward - if you publish work on the web, then you must expect that people will download it. Copyright infringement can only occur if the person who downloads it then re-publishes it as their own work. If they provide a link with full attribution, it would be very hard to prove copyright infringement. That's like suing a library for letting users borrow books.

        If it is maintained in tact (and a direct link to the original source does that) then putting a URL to it in a web page is no more copyright infringement than having a bookmark to the same resource in your browser's bookmarks.

        Anyhow, this is a complete non-issue.

        It is very simple to stop links to MP3s (or any other content) from outside the domain - heck, all the server has to do is see where the request came from and if it isn't from a page hosted on the site, don't honour it.

        Dang, that was tough.
        .
        .
        Fred Fredrickson
  • links are illegal in some countries

    google "Zoekmp3.nl goes down"

    interesting solution for RSS feeds is publicly accessible reverse proxy, like goMyPlace (check proxy.gomyplace.com)

    such proxy can be ran anywhere and not only it will save HTTP server upstream (proxy caches the data locally) but also hide IP address of the server
    ard1
  • A call for common sense is needed.

    Hmmm, if you don't want it on the internet don't publish it. Seems quite simple to me.

    If you publish on the internet you must assume that someone at sometime will link to it, even if it's just in an email.

    What these folks are saying is the equal to placing a billboard on the highway and then telling everyone only north bound people can look at it. Pfffttt....
    No_Ax_to_Grind
    • Yeah, what he said.

      They should be thanking the linker for getting someone interested in their content.

      But alas, we're all about sue, sue, SUE these days.
      Hallowed are the Ori
  • David, let's look at ZDNet shall we.

    According to your (CNet) policy;

    "All editorial content and graphics on our sites are protected by U.S. copyright, international treaties, and other applicable copyright laws and may not be copied without the express permission of CNET Networks, Inc., which reserves all rights. Reuse of any of CNET Networks editorial content and graphics for any purpose without CNET Networks' permission is strictly prohibited."

    Let's examine that last bit again.

    "Reuse of any of CNET Networks editorial content and graphics for any purpose without CNET Networks' permission is strictly prohibited."

    "for any purpose" Isn't linking to you a purpose? Is it allowed or not because your poilcy doesn't say a word about linking but the words "any purpose" could (and should) be construed to mean "Any" including linking. (I assure you a lawyer would look at it that way.)

    Yes, you have to be very careful about throwing rocks when you live in a glass house. <g>
    No_Ax_to_Grind
    • confusing reuse and purpose....

      IANAL, but if you ask me, linking doesn't constitute re-use. Purpose is more about, I have an objective and I'm going to use your content or link to it to satisfy that objective. You cannot re-use our content for that objective, but you can certainly link to it.

      db
      dberlind
      • And isn't that the problem, guessing instead of facts.

        I think much of what we see could be avoided with a clear understanding of what the web site statements means. How hard would it be for Cnet to say, "You may link freely to any of our content."

        COurse the lawyers in the crowd would hate such a simple straight forward wording. You never know when you may need to sue someone.


        Even your statement leaves me wondering what you mean.

        "Purpose is more about, I have an objective and I'm going to use your content or link to it to satisfy that objective. You cannot re-use our content for that objective, but you can certainly link to it."

        If my objective is say, to give examples of on line journalism, is linking allowed to further my objective?
        No_Ax_to_Grind