NONE: ONLINE-ADS>> FRAMING CASE
ONLINE-ADS>> FRAMING CASE
Sam Alfstad (answers_at_e-land.com)
Sat, 05 Jul 1997 12:14:52 -0500
I would like to bring up a new subject for discussion, one which I don't
think has gotten nearly enough attention.
Early in June it was announced that TotalNews has reached a settlement
with six major media companies that had sued the site for displaying
their news stories. As C/NET wrote at the time:
"According to Roman Godzich, president of TotalNews, his
five-person company has reached an agreement with the plaintiffs in the
case--media giants the Washington Post, Times Mirror, Time Warner, CNN,
Dow Jones, and Reuters New Media--not to display their news stories
within a frame on the TotalNews Web site. However, the media companies
agreed to grant TotalNews a "linking license" so that it can still
hyperlink to stories on their sites."
A lot of other sites link to news stories. Our site, e-land, does,
NewsHub, C/NET, ZDNet and many others. In fact, linking is the heart and
soul of the internet. What would the net be without links?
A number of unsettling questions were left in the wake of the
settlement:
1. What is a "License-to-Link?" Section 4.(d) of the settlement states:
"each Plaintiff's agreement to permit linking by Defendants remains
revocable, on 15 business days' notice...at each Plaintiff's sole
discretion." To our knowledge this is the first time in internet history
where a permission to link has been required or given. Peter Jakabs, of
Fein & Jakabs, the law firm that defended TotalNews, says, "There is
only a linking license to the extent that there is any right to license
at all." He too is unaware of linking permission agreements. "There are
linking agreements," he says. "But those are just back-scratching deals,
'I'll link to you as long as you link to me,' not permissions."
2. Is a URL a trademark? The gang of six says, "Yes." Mr. Godzich thinks
a URL is no more a trademark than is a telephone number. Lawyers are
split on the question. But what happens to the internet if when we link
to a URL we are liable to copyright infringment? If we must get prior
permission to link? A chilling thought.
3. How did this huge media conglomerate get together to sue one little
site in the first place? After all, these companies are usually in
competition, not cooperating. We interviewed the lawyers in a recent
article we ran in e-land, "The Gang of Six v, TotalNews,"
(http://www.e-land.com/e-news_pages/gang_of_six.html). When asked how
they got together, Bruce Keller, of DeBevoise & Plimpton, the lead
lawyer for the media companies, said, "I don't know how they came
together." When asked who called to hire him on the case, he replied, "I
don't remember how it started." David Moran, head legal counsel for Dow
Jones, was only slightly more helpful. He described a friendly group of
media lawyers who often talk about matters concerning the industry and
meetings where subjects of mutual interest come up. He said media
companies often cooperate to pursue government issues and liable cases.
When asked specifically about this case, he said, "I don't know the
answer to that question, we just sort of got together." He then
suggested that we ask Mr. Keller for specifics. When told that Mr.
Keller couldn't remember, he said, "I don't recall. I can't help you."
The question is not unimportant. Size and clout did matter in this case.
Mr. Godzich admits he didn't have the funds to fight for what he still
believes he was right. "I went to lawyers that said I had a slam-dunk
case. Just give them $100,000 on retainer and everything would be fine.
But I didn't have $100,000, not even close." Sources that preferred to
remain anonymous said the gang of six was trying to make a "rights
grab," that they were trying to "buy a quick decision."
The Supreme Court Decision in Reno v. ACLU was wonderful news for all of
us involved in online commerce, but what are we going to do about big
business trying to dictate the rules of internet? What can we do?
Sam Alfstad
editor
e-land
"where business runs online"
http://www.e-land.com
sam_at_e-land.com
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