To link or not to link: how to avoid copyright traps on the internet

To link or not to link: how to avoid copyright traps on the internet

To Link or Not to Link: How to Avoid Copyright Traps on the Internet by Tanya Shkolnikov The problem of avoiding Webrelated copyright liabilities in ...

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To Link or Not to Link: How to Avoid Copyright Traps on the Internet by Tanya Shkolnikov

The problem of avoiding Webrelated copyright liabilities in library activities, including legal ramifications of linking and librarians’ responsibility for the content of the linked sites, is discussed. The recommendations offered may help librarians stay safe on the Web and be instrumental in developing intellectual property guidelines for their libraries.

Tanya Shkolnikov is the Reference Librarian, the Center for Healthcare Informatics Education, Health Sciences Center Library, SUNY at Stony Brook, Stony Brook, New York 11794-8034 ⬍[email protected]⬎.

D

igital copyright is the subject of numerous heated discussions among all the communities that create and disseminate information. Most of the participants of the discussions about electronic copyright problems belong to the two major camps that may be vaguely defined as information (copyright) owners and information consumers. Although librarians are not part of either camp, their immediate and natural loyalty to the second group, which includes most library patrons, may not preclude them from observing that both sides of the discussions have reasonable arguments. While information consumers feel that current Internet laws are too restrictive, copyright owners argue that copyright owners are forced to give away too much. Both parties cite the U.S. Constitution, 1976 Copyright Act1 and Digital Millennium Copyright Act (DMCA),2 and claim that the sky will fall if each and every argument is not resolved the way they want. The trouble is that the present state of copyright law is such that either side stands a good chance of winning in practically every case. Mark Twain once noted that only one thing was impossible for God: to find any sense in any copyright law on the planet.3 New copyright reality makes his words relevant as never before. The purpose of this article is, however, not to investigate how well each point of view is supported by rapidly evolving Internet copyright laws; rather, it is an attempt to answer a few questions of practical importance for any librarian dealing with Web information sources, all of them stemming from the Web’s most valuable feature, linking: ●



When is Web linking safe from potential copyright violations? When must the librarians, and when is

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● ●

it just prudent to, ask permission for linking? What are legal ramifications of various linking methods? To what extent may librarians be held responsible for the contents of the sites linked to their Web materials?

To answer the above questions, this article analyses a number of recent copyright-related lawsuits and their possible effects on our work and suggests a number of recommendations on how to prevent potential copyright liabilities, which will, hopefully, show other librarians “where the dangerous spots are to avoid them.”4 Of many Internet legal issues, those related to linking—the Web central feature— has the most far-reaching ramifications for reference librarians, who provide users with numerous Web addresses and direct those users to specific parts of Web sites. They supplement their class handouts and printed bibliographies with lists of links to online resources. They create pathfinders and tutorials, and teach numerous classes on how to link to useful sites of good quality. Linking allows librarians to extend their library collections virtually and transform conventional libraries into “libraries without walls.” No wonder then that, because of its very omnipresence, linking could lead libraries into legal trouble.

CAN A SIMPLE LINK BE A COPYRIGHT INFRINGEMENT? Linking is an essence of the Web and a major source of copyright conflicts. This is because any linking results in a copy (or copies) created in the memory [more precisely, random access memory (RAM)] and on the hard drive of the user’s computer. Whether these copies constitute a copyright infringement depends

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on the way the copies’ creator is identified. The Report of the 1995 Information Infrastructure Task Force Working Group on Intellectual Property Rights, commonly known as the White Paper,5 recognizes a user as a copy creator and, therefore, a violator of copyright. The authors of the White Paper base their assertion on the fact that part of the content of the linked Web site is cached (copied) on the user’s computer, and on the U.S. Copyright Act, which gives an exclusive right to reproduce or distribute their work to the copyright owners. The White Paper refers, in particular, to the 1993 MAI Systems case in which the court determined that any loading to RAM, no matter how transient, is “fixed” and means copying.6 The report Copyright Issues in Colleges and Universities, prepared by the American Association of University Professors (AAUP), tries to soften the position of the White Paper. The authors of this report agree with the notion that users make unauthorized copying during each simple linking to the page. They argue, however, that this copying is temporary, unintentional, and done not by users but by their computers because “technology doesn’t allow us [to read any Web material] without this being copying into computer cache.”7 Indeed, at the time when U. S. Copyright Act of 1976 was designed, copying was always intentional: people had to make a conscious effort to make a copy. Now, users can make copies without their intention and even without their knowledge. This opinion seems reasonable. In legal matters, however, only law speaks; and the MAI case shows very convincingly that the “intention to infringe is not essential under the Act”8 and that “intent or knowledge is not an element of infringement.”9 Matt Jackson of Pennsylvania State University, the author of numerous publications on electronic copyright, espouses views on linking opposite to the ones just described. He compares a document on a Web server to an outgoing message on an answering machine and concludes that linking is always authorized by the material’s owner. Indeed (his arguments goes), when a user clicks on a link to the owner’s site, the user’s Web browser requests a document from the owner’s server; upon this request, the owner’s server generates a “copy” and sends it to the user. Thus, the site’s owner authorizes the reproduction, if only implicitly, and, “since viewing a document

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does not infringe the reproduction right, providing a link does not constitute contributory infringement.”10 Almost all linking-related lawsuits are based on, refer to, or imply differing views on linking and both reflect and fuel fiery debates about linking. Although none of those lawsuits even mention libraries, it is very important to know them because they create precedents that might affect our core activities at any time. Out of numerous legal cases on linking, those chosen for this article are most hotly debated in legal and library literature on copyright and are most frequently cited in copyright documents and copyright lawsuits. Their legal ramifications influence present copyright policies and, thus, will likely be heavily used in the future development of the Internet copyright law and library practice. As the reader will see, most of the lawsuits addressed in this article involve for-profit organizations, but their outcomes are general enough to affect the libraries as well.

LEGAL CASES BASED

ON

LINKING

Intellectual Reserve, Inc., v. Utah Lighthouse Ministry, Inc. (1999) Jerald and Sandra Tanner, former members of the Mormon Church, created the Utah Lighthouse Ministry Web site with content unfavorable to the Church. After they posted 17 pages of the unpublished Church Handbook on their Web site, the Church Handbook copyright owners sued the Tanners for violating the Church’s exclusive rights to display and distribute. The Tanners received a restraining order that barred this posting. They complied and removed the excerpts, but posted instead links to other Web sites that contained this material. The Church sued them again, this time on “contributory infringement.” The basis for an infringement sounds familiar; By viewing a Web page containing infringing material through a browser, the user is himself infringing the copyright in the underlying work because in so doing he creates a copy of the infringing materials in his computer’s random access memory.11

The Tanners were directed to remove links to the sites where the Church’s publication could be found. The Tanners decided not to appeal because the entire book was freely available elsewhere on the Internet anyway.

International Federation of the Phonographic Industry v. Olsson (1999) After a 17-year-old student, Tommy Olsson, built a Web page with free links to music files, the International Federation of the Phonographic Industry brought charges against him on the grounds that some of files linked to his page contained unauthorized copyrighted music. On September 15, 1999, the Swedish court acquitted Olsson. The court found that no display or distribution rights were violated because he did not actually make or host copies, but “just spread information about where to find them.”12 The same court ruled, however, that Olsson was acquitted only because the Federation did not charge him for contributory infringement. As in the previous case, the court found that providing links could constitute contributory copyright infringement. DVD Copy Control Association, Inc., v. Andrew Thomas McLaughlin et al. (1999) The Motion Picture Association of America and other members of the DVD Copy Control Association developed Content Scramble System (CSS) software to encrypt DVDs and prevent them from being copied. Shortly after that, a 15-year-old Norwegian, Jon Johansen, developed a decryption program DeCSS capable of replicating DVDs. This program immediately became freely available online. CCS developers sued 72 programmers who placed the illegal software on their Web sites or simply posted links to the sites with DeCSS (e.g., Lycos search engine). Having granted injunctions to the Web sites with illegal software, the court did not request that links to these sites be removed. Contrary to previous cases, this court acknowledged that such a request would be “overbroad and extremely burdensome,” because “a Web site owner simply cannot be held responsible for all of the content of the sites to which it provides links.”13 Again, the court’s view on linking was a major source of the suit’s outcome, in this case diametrically opposite to that of most similar legal cases. Universal City Studios, Inc., et al. v. Shawn C. Reimerdes et al. (2000) Owners of an Internet-based magazine provided access to DeCSS software on their Web site. When the court perma-

nently enjoined them from offering this software for downloading, they removed DeCSS from the Web site, but published instead links to other similar sites. The judge ruled that such linking violated the anti-trafficking provisions and constituted copyright infringement, as amended by the Digital Millennium Copy Act (DMCA). The court found that “hyperlinking is essentially the same thing as posting the information directly”14 and warranted an injunction. Taken together with the previous cases, this verdict clearly demonstrated the inherently contradictory nature of current Internet case laws: for almost identical charges, different courts arrived at opposite decisions, again relying on opposing views on linking.

“This verdict clearly demonstrated the inherently contradictory nature of current Internet case laws: for almost identical charges, different courts arrived at opposite decisions, again relying on opposing views on linking.” Gary Bernstein v. J. C. Penney, Inc., et al. (1998) While promoting Elizabeth Arden’s “Passion” perfume, J. C. Penney brought users through several internal links to a Web page about the screen work of Elizabeth Taylor, the Passion spokeswoman. This Web page was linked to the Internet Movie Database (IMDB), which in its turn was linked to the Swedish University network, where Gary Bernstein’s photos of the actress appeared without his authorization. The photographer insisted that J. C. Penney deliberately linked to the sites leading to his photos, thus attracting more visitors and benefiting from using his photos without paying him royalties. The judge dismissed so much of the complaint that the plaintiff withdrew his remaining claims.15 Bernstein’s claims might be called ludicrous, but, generally speaking, his claims were not very much different from claims in some of the previous cases. Moreover, these claims forced J. C. Penney to disconnect the link to the IMDB site as soon as it was notified of the alleged infringement to prevent any harm to its reputation.

LESSONS FOR LIBRARIANS FROM COURT CASES RELATED TO SIMPLE LINKING Certainly, no librarian will intentionally link directly to sites that contain infringing materials. It is close to impossible, however, not to have indirect links to illegal sites, according to a study published in Nature in 1999. Three physicists from the University of Notre Dame (Indiana) estimated the average “distance” between two random Web pages and found that no pages were separated by more than 19 mouse clicks.16 Thus, there is a great probability that every link creator can be just three to four links away from illegal materials, as J. C. Penney was. Unfortunately, the DMCA does not address this problem directly and clearly. On one hand, it declares that “providers are not responsible for infringement of copyright if they link users to a location containing infringing material, if provider does not have actual knowledge that the material is infringing.”17 On the other hand, it did not address the question whether creators of the links are responsible for indirect links to infringing material. The negative answer to this question seems self-evident, but common sense does not always apply, especially when it comes to liability claims. In fact, the guidelines on the use of electronic media published by the Securities and Exchange Commission (SEC) in May 2000 unequivocally announced the issuer’s liability for hyperlinks: “We first consider issuer responsibility for hyperlinked information under the anti-fraud provisions of the federal securities laws.”18 Therefore, the lawsuits, such as Bernstein’s, and the guidelines, such as the SEC’s, will appear again and again until it is authoritatively clarified by law whether linking to Web sites with illegal materials, if done without clear indication of intention to violate copyright law, can be prosecuted.

“DEEP LINKING”—A DEEP CONCERN In deep linking, instead of linking to the home page of a Web site, one links to its specific internal page. By connecting users immediately to the desired information and allowing them to return easily to the list with links over and over again, deep linking spares users a lot of unnecessary Web navigation. Indeed, many Web sites’ navigational tools offer too many options, thus overwhelming users

on their way to the material needed. Even more frequently, the lack of developed navigational tools, such as clear menus and directions, site maps, or indexes, forces users of the sites with wonderful material to follow too many links to retrieve useful information. A recent publication by Gretchen K. Berland et al. shows, for instance, that, among 389 sampled relevant links, 288 (74%) led to a content page within 10 clicks.19 Is everyone ready to make these 10 clicks? The famous “Mooers’s law” states: “An information retrieval system will tend not to be used whenever it is more painful and troublesome for a customer to have information than for him not to have it.”20 Too long a road to information is discouraging to most of our users, who are usually not willing to invest too much time in their searches. According to the 2000 survey by a leading global marketing research and consulting firm, Roper Starch Worldwide, 71% of users are frustrated after 12 minutes of fruitless searching.21 Clearly, users appreciate any opportunity to link directly to the desired information; however, are Web sites owners appreciative of deep linking as well?

“Clearly, users appreciate any opportunity to link directly to the desired information; however, are Web sites owners appreciative of deep linking as well?” As a rule, owners welcome simple linking to their Web sites, because attracting more visitors greatly enhances the site’s value as a marketing tool. Moreover, extensive linking to a Web site is the best attraction for advertisers, who profit from a site’s popularity. Even if visitors leave a commercial site with no purchase, it is still beneficial to the Web site owners because the number of hits and, therefore, the site’s bargaining power in selling advertising will increase. The same Web site owners, however, frequently see deep linking as much less attractive because it allows visitors to bypass the most conspicuous and thus most profitable advertising, which is usually located on the site’s front page. Loss of profit is the grounds for all of the following lawsuits.

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CASES INVOLVING DEEP LINKING Shetland Times, Ltd. v. Dr. Jonathan Wills and Zetnews, Ltd. (1996) The Shetland News created a Web site with a list of headline news linked directly to the corresponding articles from The Shetland Times. In its suit, The Shetland Times claimed that these links violated its copyright because they “misled users into thinking that the articles were part of the News ” and allowed users to bypass the front page of the Times, where the Times was going to sell advertising space. The court issued an interim interdict (i.e., an order to terminate such linking temporarily, subject to further litigation). The case was settled, and no opinion was issued.22 Ticketmaster Corporation v. Microsoft Corporation (1997) Seattle Sidewalk Web site, owned by Microsoft, offered fast and easy access to information about local dining and entertainment. A user who chose a specific event on Seattle Sidewalk was linked immediately to the purchase-ordering part of Ticketmaster’s Web site, totally bypassing information on Ticketmaster’s policies and various services, together with its most valuable advertisements. Ticketmaster accused Microsoft of conducting “electronic piracy” that “resulted in the diminution and dilution in value of Ticketmaster’s name, goodwill, and business.”23 Ticketmaster compared deep linking to internal pages with people coming to the house: no visitor can enter any part of the house without passing the “front door.” This suit ended harmoniously when Microsoft sold Sidewalk to Ticketmaster’s CitySearch, gaining $156 million in this deal. Ticketmaster Corp. v. Tickets.com, Inc. (2000) Like the Seattle Sidewalk Web site, Tickets.com created a direct link to Ticketmaster ticket-purchase information, so that users saved time bypassing Ticketmaster’s advertising and policies pages. In this case, however, the judge denied the plaintiff’s request for a preliminary injunction. In particular, the court held that “[h]yperlinking does not itself involve a violation of the Copyright Act . . . since no copying is involved, the customer is automatically transferred to the particular genuine web page of the original author.”24 Apparently, the judge did not believe that linking equaled copying

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and, therefore, unlike judges in the two previous cases, he did not find anything wrong with deep linking. Ebay, Inc., v. Bidder’s Edge (2000) Some Web sites attract users by allowing them to search several Internet auction sites at once, instead of visiting each site separately. Nearly all such sites deeplink users with the most popular auction site, eBay. Seeing its profits in danger, eBay demanded that such links be removed. Some “perpetrators” (e.g., Ruby Lane) complied, while others persisted (e.g., AuctionWatch restored its eBay listing after having kept it off for a couple of months). One of the eBay’s lawsuits related to deep linking, the one against the disobedient Bidder’s Edge, ended up in court. The judge ruled that Bidder’s Edge trespassed on personal property through software robots. He granted the preliminary injunction, not for linking itself, but rather for a way of gathering information on eBay that caused loss of computer capacity and bandwidth and slowed access to the site for direct users.25 If applied consistently, this decision would potentially outlaw all search engines because all of them use robots to gather information from main and internal pages of millions Web sites. Universal Pictures against Jean-Pierre Bazinet (1999) Universal Pictures demanded that Jean-Pierre Bazinet remove links to its movie trailers from his Web site. The defendant did not see this request justified, but, lacking resources to fight Universal, immediately complied.26 For the same reason, he also yielded to similar demands of other studios. The case never reached the courtroom; nevertheless, it deserves mentioning as a quite typical dealing with a request from a powerful company to a private person.

LESSONS FOR LIBRARIANS FROM COURT CASES RELATED TO DEEP LINKING As with the court cases on simple linking, all these deep-linking cases have a lot in common: with the exception of Ticketmaster Corp. v Tickets.com, Inc., the courts sided with plaintiffs, or the cases were settled out of the court to the plaintiffs’ satisfaction. Both law and common sense justify Web sites owners’ frustration when others use the content of their sites without clearly attributed ownership and/or affiliation. Plaintiffs invest a lot of

time, effort, creativity, and money into their Web sites and are entitled to profits from banners with advertising on their home page. Those profits, however, are in jeopardy when visitors can bypass home pages with hit counters. At the same time, the linking Web sites increase traffic on their own Web sites, thus capitalizing on the content they have not created. “If the copyright owner then argues that the link to his copyrighted work adds value to the web page containing the link, courts might be tempted to find infringement of the derivative work right.”27 Because decreased profits are the major reason for most lawsuits related to deep linking, one might assume that those lawsuits are of no relevancy to not-for-profit organizations, such as libraries. Recently, however, some libraries have began looking into offering banner ads and portals on the libraries’ home pages; for such libraries, the entire problem of copyright compliance, in particular of the appropriateness of deep linking, would gain much higher importance. Moreover, loss of profit is not the only reason for Web sites to insist on linking to their home pages first: some Web sites, for example, use a registration process to count users and then rate materials by their popularity (e.g., see below the claim of The Times of London against News Index of Pittsburgh).

“It is true that the educational purposes of linking and nonprofit nature of libraries protect librarians under this doctrine, but only to a point.” Looking for a cover against liabilities, a librarian might turn to the fair-use doctrine, which allows one to use parts of copyrighted work without a fee or the owners’ permission, if the use is not intended for profit, does not diminish the market for the original work, and only a small portion of the original work is used for specific purposes, such as research, teaching, book reviews, journalism, criticism, parody, and the library use.28 It is true that the educational purposes of linking and non-profit nature of libraries protect librarians under this doctrine, but only to a point. For example, if the access to a library’s Web page with links is not restricted to a specific group of patrons

for limited amount of time, the fair use doctrine does not cover this page.

FRAMES Of the various linking techniques, linking in frames is probably the target of most of the accusations in copyright infringement. Frames divide a browser window into several parts operated independently. If linking brings users to another Web site and the linked site shows on the framing site in a smaller window, with portions of the linked sited obscured, then content of the linked Web page may look as though it is part of the initial site. Users may not realize immediately, or ever, that the visible site name, banners, URL, and the navigation bar belong to one site, while the rest of the display belongs to another. Listed below are several lawsuits in which plaintiffs argue, quite successfully, that the framing site perpetrates copyright violation by reproducing part of an original work or by creating a derivative work (by recasting, transforming, or adapting original work). Washington Post Co. v. Total News, Inc. (1997) Total News created a gateway to Internet news sources with links to many prominent U.S. media outlets. This site became very popular, being a one-stop shopping place for news. Following its links, users saw material of the linked site in a frame surrounded by Total News attributes: its URL, logo, and advertising (the latter substituting the linked site advertising). The plaintiff argued that Total News users unavoidably misapprehended this embedded material as part of Total News; users might also infer, wrongly, some affiliation between Total News and plaintiffs. CNN, Time-Warner, Reuters, and the publishers of The Washington Post, The Wall Street Journal, and the Los Angeles Times accused this “parasite site” of “pirating copyrighted material” and “diverting plaintiffs’ advertising revenue, and profiting from the use of information provided by others.”29 After Total News was found guilty of copyright infringement, it agreed to all plaintiffs’ demands, so that the case was settled with no opinion issued and no formal legal precedent established. The Times of London against News Index of Pittsburgh (1997) According to Dominic Young, copyright manager for News International (the owner of The Times of London), “our

identity, navigation and logo are contained within the surrounding frames and are not shown to visitors from News Index. Effectively, the design of our pages is altered.”30 After a settlement, The Times decided not to escalate their complaint into a legal conflict. Playboy Enterprises, Inc., v. Web21 Inc. (1997) Web21’s Web site created hundreds of links to other sites on the World Wide Web, including Playboy. One of many allegations was misappropriation of Playboy’s information when it appeared framed on Web21’s Web site.31 No court passed on the merits of these claims because Web21 agreed to settle the case the same day Playboy’s lawsuit was filed. Journal Gazette Co. v. Midwest Internet Exchange (1998) Like Total News and News Index, FtWayne.com linked to news articles from numerous sources. Two Indiana newspapers, The Journal Gazette and The News Sentinel, filed a lawsuit against Ft-Wayne Web site, claiming that their content appeared in the frame with Ft-Wayne’s own advertisement and logo.32 After the lawsuit was filed, Ft-Wayne.com discontinued links to these two newspapers; hence the case remains pending. IMAX Corp. v. Showmax, Inc. (2000) One of links on the Web site of Showmax, a large-format Canadian cinema operator, led to IMAX at the Old Port of Montreal. When retrieved, this IMAX Web site, together with IMAX’s trademark, appeared embedded into the Showmax site. A simultaneous display of both the IMAX logo in the frame and the Showmax logo on the original page brought users to the false assumption that these two companies were related and were not competitors, but companions. The court found that using frames indeed implied an association with Imax and that Showmax illegally copied Imax Web site content to its site; on these grounds, the court enjoined the framing practices of Showmax.33 Futuredontics, Inc., v. Applied Anagramics, Inc. (1998) Frames allowed Applied Anagramics, Inc. (AAI), to display content of the Futuredontics’ Web site together with AAI’s logo and AAI’s information about its business operation. Futuredontics, very successful in its dental referral service, was anxious that users might erroneously

believe that “AAI—not Futuredontics— was responsible for the success of Futuredontics’s dental referral service.”34 These allegations were similar to those in other framing cases; the conclusion was, however, exactly opposite: the court denied Futuredontics’s request for a preliminary injunction, because it found no evidence of tangible harm to the company from AAI’s framed link. This denial was upheld on appeal. Yet, in 1998, the federal district court for the Central District of California, after finding no violation of reproduction right (in the frame around the linked Web page), stated that the defendant could be considered guilty of creation of unlawful derivative work. Most of framing-related lawsuits accuse defendants of taking advantage of someone else’s content and traffic and in using the content of the plaintiffs’ Web sites to attract users and expose them to their own advertising. Plaintiffs are also concerned that framing technique confuses users about the true owner of the content and that the potential implication about an affiliation between linking and linked sites can be harmful to the original site’s reputation. Modification of copyrighted material through framing is also among the most common allegations in framing-related legal claims. Everyone dealing with frames should be extremely cautious to avoid copyright infringement.

RECOMMENDATIONS Myrtle Scott of Indiana State University at Bloomington asks rhetorically whether intellectual property rights are a ticking time bomb or just a clock in a suitcase.35 Numerous lawsuits in different arenas suggest that the situation will remain close to a ticking time bomb for a while, so that every librarian that works with linking could be potentially liable for copyright infringement. The prospect of any librarian ending up in jail for inappropriate linking is minimal; there is a greater possibility, however, that someone’s claims might leave librarians, and libraries, entangled in prolonged legal arguments or real legal trouble. The most vulnerable and uncertain is copyright in electronic environment. Among the factors contributing to this uncertainty, Kenneth Crews (a professor with Indiana University at Purdue, director of University’s Copyright Management Center, and the author of well-known publications on copyright problems in higher education), lists lack of policy direction as “the most visible weakness of innovation;” “little

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guidance provided by court;”36 and “unexpected complications” raised by new statuses, such as the DMCA. In such circumstances, Crews’ advice is to “act in an informed and good-faith manner.”37

“Numerous lawsuits in different arenas suggest that the situation will remain close to a ticking time bomb for a while, so that every librarian that works with linking could be potentially liable for copyright infringement.” The following recommendations are based on studying the above-discussed publications and legal cases; the guidelines of various library associations; informal discussions with colleagues; and my own experience as a reference librarian. I do not possess a formal legal background; therefore, these recommendations cannot serve as formal legal advice (a library developing a formal policy on linking would certainly benefit from a review by a professional legal counsel), but rather as a tentative roadmap for librarians who work with Web materials. These recommendations are aimed at helping librarians walk reasonably safely amid a variety of potential legal traps: 1. Stay informed about copyright problems by participating in conferences and meetings, reading books, professional journals, and Internet section of newspapers. Follow “hot” legal cases related to digital copyright; this task is greatly facilitated by the reading the “Link Controversy Page” by Stefan Bechtold.38 2. Exercise special caution when linking to sites with lots of banners. 3. Be aware that some sites contain unauthorized copies. It is usually impossible to check all pages of a linked Web site. Nevertheless, it is necessary to go through usual selection procedures by verifying credentials of the site authors and owners and checking if the site is included in some reputable indexes. 4. When creating links, indicate the site owner and his/her affiliation in an annotation to the link; display the site’s URL next to the link’s title. This helps

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5.

6.

7.

8.

prevent confusion about the ownership of material and is convenient when using a printed copy of the Web page. If using frames, make an extra effort to identify ownership (e.g., create an intermediate page that clearly states that the visitor is leaving the initial Web site, so that the next portion of the information will be on another Web site). Check whether the linked site has special requirements, such as obtaining permission to link or even purchasing a license. For example, PubMed, which is in public domain, requires displaying proper attribution to PubMed itself and to the National Library of Medicine (NLM), indicating that the search is actually being conducted at NLM, and providing an option for continuing the search directly on PubMed. In addition, the National Center for Biotechnology Information (NCBI’s) disclaimer and copyright notice should be conspicuously placed.39 Make an extra effort to find a page with “terms and conditions,” because it usually not only specifies users’ responsibilities, but also defines their rights. Sometimes, terms and conditions are disguised under different names: “Linking Guidelines” (Library of Virginia at http://www.lva.lib.va.us/ copyright.htm), or “A message from our lawyers” (Kraft at http://www. kraftfoods.com). If terms and conditions are unclear, it is wise to send an e-mail to the Webmaster asking for help. Always ask for permission when using someone’s Web site extensively or if in doubt whether the site would appreciate being linked. In particular: • Request permission from the copyright owner in writing and keep the records. • Before submitting the request, “call to confirm the address and the name of someone to address personally. Call to be sure that you have found the current copyright owner. Call to be sure the recipient understands copyright issues and will cooperate in granting permission.”40 • Include in the request the name of the institution, library, the name and position, e-mail, and telephone number, • Briefly explain the reasons and terms of linking. Do not forget to

express the appreciation of the linked site. • Submit the request as soon as possible. Starting early allows to timely identify the copyright owner, because contact e-mail addresses often belong to the Webmaster rather than to the copyright owner. • Do not expect an immediate answer. According to Mary E. Carter’s experience, obtaining permission may take months, if it arrives at all.41 If no answer is returned, repeat the request in two weeks. • If no answer is received, it is still possible to use links under fair use doctrine. To prove the eligibility of the links for fair use doctrine, indicate that links are (1) placed for specific educational needs, (2) placed temporary and will disappear within a specific time period, and (3) created for a specific category of users. • If possible, limit access to the links that are placed under fair use doctrine, using passwords, IP addresses limitations, access codes, or digital certificates; or disable the viewer’s “back” button, the way the JAMA: The Journal of the American Medical Association site (http://jama. ama-assn.org/) does. 9. Write a disclaimer. A disclaimer does not completely protect an author from litigation, but it is a good preventive step to avoid misunderstandings and consequent legal challenges. For instance, a carefully written disclaimer helped the owner of a small jazz club in Missouri and led the court to the dismissal.42 A good disclaimer includes a clear statement that assures that the library: • Makes every effort to find the most appropriate and current sources; • Does not warranty that all conceivably relevant Web sites on the topic are included; • Is not responsible for external information and cannot guarantee the accuracy of all information on linked sites; and • Does not endorse any product described or advertised by linked site. Do not overplay the limitations, though, because this may give the users the false impression that “this information is probably worthless.

I know I couldn’t recommend it to you, and anyone who relies on it is a fool.”43 To the contrary, the impression should be conveyed that the links selected are reliable and valuable, and selectors are experts in identifying good information sources. 10. With all good intentions and goodfaith effort, there is still a small possibility of an inadvertent infringement, or an appearance of an infringement. If an infringement notice arrives: • Delete the link in question immediately; • Write an apology and explain the reason for your links; and • If the link is valuable, try to negotiate using it. Even if there is a room for an argument, delete the link first and argue later.

CONCLUSION The most dramatic revolution in storing and disseminating information since the advent of the printing press, the explosive growth of the Internet presents exciting new opportunities for libraries. Reference librarians, whose traditional core mission has always been to help library patrons navigate the sea of printed books and journals, have now to expand their reach beyond library walls, into the seemingly boundless ocean of the Internet. This drastic change empowers them with new possibilities and invites new perils. Reliably shielded from legal threats before by the fair use doctrine incorporated into the traditional copyright law, librarians are now exposed to all the undercurrents and storms of the largely uncharted waters of the Internet copyright law, itself adjusting to the changing realities of the Web. So far, no libraries or librarians have been hit by copyright liabilities, but the “ticking time bomb” of copyright infringement can explode at any time. It is my hope that this article will help librarians stay safe on the Web in this time of legal changes and uncertainty and will be instrumental in preparing intellectual property guidelines for libraries.

NOTES

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6. 7. 8. 9. 10. 11.

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16.

REFERENCES

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