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Defining your right to click
This column originally ran in ComputorEdge on September 13, 2002
(Issue 2037, Amazing Technology)
It was only inevitable, I suppose, that the greedy would rush in and try to claim they own this or that piece of the Internet.
But it's still sometimes a bit scary the amount of chutzpah some folks have in filing lawsuits claiming to own hyperlink technology or preventing others from linking to their site.
Trying to patent links
At least for now, you won't have to pay to click any time soon.
A judge has dismissed a lawsuit by a company called BT Group claiming that it invented hyperlinks. BT had sued Prodigy for supposedly violating its patent on hyperlinks.
Oddly enough, BT claimed to have invented hyperlinks in the 1970s – nearly a decade after the technology was first proven by Douglas Engelbart (the same man who invented the computer mouse and window-based operating systems), based on earlier proposals by theorist Vannevar Bush.
As to why BT went after Prodigy, it seems that they were suing not over current World Wide Web technology (developed in the late 1980s by Tim Berners-Lee), but an earlier implementation that Prodigy used on their commercial online service in the mid-'80s.
Pending any appeal, though, your right to click freely remains intact.
The right to link?
If you still have the right to use hyperlink technology without paying royalties, the larger question of whether you have the right to post links on your site remains unanswered.
Several courts have ruled that you cannot link to someone's site without their permission.
Seeing as a hyperlink is simply an online address, it's hard to see how these decisions can stand up when appealed. To say you need permission to link to a site is no different from forcing someone to get a corporation's permission to publish their street address.
In the physical world, such a ruling would make it impossible to organize letter-writing campaigns to protest corporate actions. Current protests against Nike would have fizzled if organizers needed Nike's permission to include its corporate mailing address in flyers and letters.
(Although the rights of individuals to be secure in their homes does raise other questions; the soon-to-be-appealed-again case of The Nuremburg Files pits the right of an anti-abortion activist to print the street addresses of doctors who provide abortions against their right to not be harassed when at home. Earlier Supreme Court decisions have held that when you leave home to venture into the world each day, you have a lowered expectation of privacy – but in upholding ordinances banning the picketing in residential areas, the Court ruled that when you go home at night you are allowed to leave the raucous processes of a free nation behind.)
The nastiest fights over the right to link have involved newspapers' online sites. Various news digests and search engines have popped up offering services in which you indicate which stories you're interested in, and then they search all the news sites for you – bringing up a list of links to specific stories.
The newspapers have argued that by linking to a specific story, these digests and search engines are bypassing the newspapers' home pages – depriving them of the opportunity to expose visitors to additional advertising.
It's easier to see the newspaper's point when the digests and search engines in question use frames to pull the individual news story into the environment of the digest/search engine's own Web site. That sort of set-up certainly raises questions of whether the digest or search engine isn't trying to pass off others' news reports as their own. Fraud and misrepresentation are still wrong online.
But to try to ban simple linking seems to be going too far. And the Supreme Court has ruled repeatedly that only creative works can be copyrighted. The Court has ruled specifically that telephone directories do not meet this criteria; that a simple list or database of addresses or phone numbers cannot be copyrighted.
So it would seem to be a rather shaky legal view that a newspaper can claim copyright violation over a Web address.
Besides, the Supreme Court's final standard in almost all cases where someone is seeking to prohibit a certain activity is to ask if a less-restrictive method has been tried first.
And in the case of protecting news stories from those who would repackage them, technology already exists to give newspapers the control they're seeking in the courts.
As the New York Times and San Diego Business Journal (among many others) have already shown, you can simply set up a login procedure for those who visit your site. That way, hyperlinks to a specific story won't work – visitors will be redirected back to the home page, where they can immerse themselves in the pure bliss of seeing all those wonderful newspaper advertisements.