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Whose link is it anyway?

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Some interesting copyright issues discussed in this article. I know I would be quite angry if somebody took something I wrote and inserted hyperlinks into it without my explicit permission and without indicating that the links were not created by me...mark

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Reprinted with permission from Wired News.

>From Wired News, available online at:

http://www.wired.com/news/print/0,1294,37715,00.html

Whose Link Is It Anyway?

by Chris Oakes

3:00 a.m. Jul. 26, 2000 PDT

Is it OK for a website to turn the dialogue of online discussions into product-oriented shopping links?

The question underlies a new feature from Deja.com that will automatically link mentions of product names in discussion threads to a commerce area on its site. The new service could also raise copyright issues over whether hyperlinking constitutes changing content.

When searching Deja's archive of discussion threads, posts that refer to a particular model of laptop or automobile will link to Deja.com product pages that also link to online resellers.

For Deja.com, it's an easy way to drive traffic from the discussion-centric Usenet half of its service to the commerce-oriented product information area.

But during recent beta tests of the Deja service, scores of users became upset that their posts had been altered without their consent.

"The problem is that if I make a Usenet post, and Deja collects it, they will make every attempt to link my words to their advertising/sales, thus using me to boost their sales and effectively altering my post without my consent," one poster said, decrying the links in a discussion at Slashdot, a discussion site unrelated to Deja.

Deja responded by sending an email to users stating that the purpose of the feature is more helpful than promotional, and that some users are misconstruing the links as advertising.

"We're viewing these in-line links as an additional service to our users," said Deja.com Chief Strategy Officer Richard Gorelick. "If they're reading a Usenet post that's discussing a particular product they can click on the link -- the name of that product -- and get more information about that product."

Gorelick said such linking is no different than that on other websites that commonly link to outside sources for additional content.

After doing business for several years as a Usenet archive service, the company added a shopping information service last year as part of the company's new focus on commerce. While the Usenet service remains, the more prominent shopping service enables users to rate, review, and discuss products in preparation for a purchase.

A similar controversy arose last August, when Deja competitor Remarq turned keywords in Usenet messages into direct links to product advertisements. Within a few weeks, the outcry by Remarq users caused the company to reverse course.

"We got instant user feedback and we found out that the citizens of Usenet didn't like it and felt that it was kind of tampering," said Bill Lee, Chief Internet Officer of Critical Path, which acquired Remarq in March. "So we decided at that point to remove it."

Gorelick was aware of Remarq's experience, but said the Deja.com feature is different because the Remarq links in question were paid product advertisements.

Deja's links are to information, not ads, he said. "We're really viewing this as a value-add to our users." A small minority of its 5 million user-base have complained, Gorelick acknowledged, but "by and large they're using this feature and they're enjoying this feature."

Many online discussion posters on sites such as Slashdot have said they aren't opposed to the links and agree with Deja.com's reasons for inserting them.

Deja.com will allow people who don't want their words linked to add code to the top of their Usenet messages. The user-added header information will prevent the links from appearing in Deja.com's service.

Gorelick said viewers of messages can also configure their viewing of Deja pages so posts appear with no links.

Some users have suggested the action raises a copyright question over who owns the right to alter the text. But copyright lawyers said that adding hyperlinks, as opposed to actually changing the original text, is a gray area for the courts.

"The writers own those works, and the question would be is this an alteration of those works," said Karren Shorofsky, an attorney with Pillsbury Madison & Sutro LLP. She said Deja.com could be in good legal position because of the opt-out mechanism it is offering. "Opt out means they're doing it with the tacit permission of the user," Shorofsky said.

But Usenet posters who don't use Deja.com for creating and viewing their Usenet postings are unlikely to be aware that their words may be altered when they appear to Deja.com users.

"It is definitely more of a concern," Shorofsky said.

For its part, Deja doesn't consider that it is altering the content of messages.

"We're not really altering the posts, given that the posts consist of the text," said Steve Madere, founder and chief technology officer of Deja.com. "What we're doing is adding some HTML markup that enables some of the text to be hyperlinked."

The company said its legal counsel had analyzed the copyright issues prior to testing the feature and determined the company was on sound legal footing.

Remarq's Lee agrees that adding links to content is legal. He said Remarq has the right to change how users view content on its site. But Mitchell Zimmerman, chair of the trademark group at law firm Fenwick & West said it's possible a court could view hyperlinks as alteration.

"Are these more like a revised version of the users' (words) that now have an endorsement or an implied recommendation?" he asked. "In (that) case there's a possible argument that it's an unauthorized derivative work."

One Deja.com user said his concerns would be diminished if Deja.com made it clearer that the links were not put in by users. "The only thing Deja.com really should do is add a notice that says, 'Links with (the red triangle that appears next to the linked words) are added by Deja.com and do not show any intent of the original author,'" said user Thomas Themel.

Others suggested the company put the links outside the text of the post.

Deja.com said it would consider inserting a legend, or even moving the links to the margins. "But we think it's much easier and a better user experience to have it in the text like people are used to looking at on the Web," Gorelecki said.

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Whose link is it anyway?

Last updated: July 30, 2000 in Word 2000