Who Owns Your Hyperlinks?

Otherwise tranquil Copenhagen, Denmark, was the epicenter of a convulsion that rocked the online publishing world earlier this month, when a Danish court found that European laws make deep hyperlinking, a fundamental Web function, illegal.

Last week, Danish Judge Michael Kistrup prohibited Newsbooster.com, a second-generation search engine, from offering headlined hyperlinks directly to Danish newspaper Web sites’ stories.

The Danish Newspaper Publishers Association (DDF) had sued Newsbooster, claiming the search engine, by hyperlinking directly to stories, was allowing users to bypass the newspapers’ home and other pages, thereby denying those newspapers ad exposures users would otherwise generate when clicking through the sites to desired stories.

As DDF lawyer Martin Dahl Pedersen put it, Newsbooster was guilty of “parasitism,” earning revenues from the works of other companies.

Unlike first-generation generic search engines (such as Yahoo, Google, and Lycos), Newsbooster specializes in news searches, charges a subscription fee, and provides its clients with hyperlinks via retrieval, email, or news feeds. Newsbooster searches over 4,500 major news organizations’ sites every 15 minutes.

Judge Kistrup ruled Newsbooster’s providing headlined hyperlinks directly to the newspapers’ stories violated both the Danish Copyright Act and the European Commission’s Database Directive on the Legal Protection of Databases.

The judgment found newspaper Web sites fit those laws’ definition of a database as “a collection of independent works, data, or other materials arranged in a systematic or methodical way or individually accessible by electronic or other means.” Newspaper publishers fit the definition of legally protected makers of databases under those laws.

The text collections of headlines and articles, which make up some Internet media, are thus found to constitute databases enjoying copyright protection pursuant to section 71 of the Danish Copyright Act, Judge Kistrup declared.

Lest anyone think this is merely an errant legal ruling by a provincial justice in a tiny country, know Judge Kistrup’s decision set a precedent throughout the 15 member nations of the European Union. Legal departments at newspapers, magazines, broadcasters, and other publishing companies in Austria, Belgium, France, Denmark, Germany, Greece, Finland, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and the U.K. are having a field day.

Interest in Kistrup’s ruling is hardly limited to European publishers and lawyers.

Earlier this year, Belo Corporation, parent company of The Dallas Morning News, The Providence Journal, and 20 other media outlets, began prohibiting deep linking to its sites. Each Belo site now declares, “If you operate a Web site and wish to link to this Site, you may link only to the home page of the Site and not to any other page or subdomain of us… [nor may you] use any data mining, robots, cancelbots, spiders, Trojan horse, or any data gathering or extraction method in connection with your use of the Site.”

Soon after declaring this policy, Belo threatened to sue BarkingDogs.org, a muckracking Dallas news Web site that dared provide its readers with hyperlinks directly to Dallas Morning News stories. “As you may know, the Belo content is protected by copyright laws of the United States,” Belo’s letter to BarkingDog.org claimed. “Accordingly, we must request that you cease and desist from any unauthorized use of the Belo content, including without limitation, allowing users of BarkingDogs.org to deep link directly to the Belo content or from posting, without prior written permission, any other Belo content on BarkingDogs.org.”

If the Web weren’t based on the premise of deep linking, it would have been named the “World Wide Straight Line,” retorted BarkingDog.org owner Avi Adelman.

Journalists discovered last month that National Public Radio, generally regarded as the antithesis of American corporate media, posted a similar notice: “Linking to or framing of any material on this site without the prior written consent of NPR is prohibited.” NPR’s overall purpose might have been to prevent other sites from hyperlinking directly to downloadable audio files. But when the Internet media focused on its antilinking policy, NPR quickly lifted it. NPR ombudsman Jeffrey Dvorkin told Online Journalism Review, “I think NPR discovered that it was slightly out of sync with the rest of the cyberworld and NPR has decided that it’s going to rewrite its policy and bring it up to date.”

Many traditional media companies view antilinking policies and rulings as a means to revert the World Wide Web into traditional packaged media, such as print and broadcast editions. As writer Evan Schwartz noted in his 1997 book, “Webonomics“: “Once they enter the Web economy, all magazines and newspapers that you can hold in your hands deconstruct — in the true sense of the world. They lose their unity. They break up or decompose into their constituent elements. No longer is the editorial product a cohesive package tightly controlled by a team of editors.”

Many traditional media companies feel bans on deep linking would increase their banner ad revenues by forcing people to click down through home pages before reaching stories.

Some traditional media companies want to take over deep linkers’ own markets. During the Danish court hearing leading up to the Newsbooster decision, one prosecution witness admitted Danish newspapers themselves wanted to serve the market created by Newsbooster.com, and they planned to launch a news search engine service.

Requiring permission before ever hyperlinking to other sites — even by search engines — could jeopardize the fundamental ecology of the Web. You wouldn’t own hyperlinks you place on your site. Such a ban would reduce the number of sites that could charge for content in favor of traditional media companies.

Back in Copenhagan, Newsbooster’s CEO, Anders Lautrup-Larsen, plans to appeal Judge Kistrup’s ruling.

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