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4/18/2002
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On The Horizon: Thorny Issues Surround Hyperlink Ownership

Growth of the Web could be threatened if the courts apply copyright law in a strict way.

It's been more than 50 years since Vannevar Bush described his vision of a memory extender (or "memex") that would provide connections among microfiched documents and create an electronic trail linking scattered bits of information; 30 years since Ted Nelson coined the term "hypertext" to describe the "connected literature" of the world that could make up a web of information that could be accessed from anywhere; and a decade or so since Tim Berners-Lee developed the first protocols for something he called the World Wide Web, which became the fastest-growing human-built artifact in history. Now, the very heart of this remarkable global information system, the hyperlink, is under attack by an intellectual property system of law whose better days may be behind it.

First comes news that British Telecom (of all companies) claims it owns the hyperlinking process, under U.S. Patent No. 4,873,662, to be precise. At least, that's what BT says in a patent-infringement lawsuit against Prodigy Inc. filed in New York federal court in December. Like Captain Renaud in Casablanca, BT is shocked--shocked!--to find that Prodigy provides its customers with Internet services that include a Web server, which stores Web pages containing both a displayed portion (visible to browsers) and an undisplayed portion (containing hidden information that's not seen by the user); hidden information includes addresses associated with the displayed portion, e.g. a hyperlink, which, the suit says, "causes the Web page indicated by that address to be displayed to the user." That, BT asserts, infringes its patent for the hyperlinking process.

It sounds, of course, as if Prodigy is doing exactly what everybody who's ever constructed a Web page has done. That's the point of the suit: To obtain a declaration from the court that BT's patent is valid and covers this common activity, so that BT can begin to collect licensing revenue from those responsible for each of the 100 billion or so links out there.

We don't like to predict what courts will do in particular cases, but it's hard to imagine one ruling that BT's patent is valid or is as broad as the company claims it is, and that therefore anyone who has ever put a link on a Web page is a patent infringer.

Stranger things have happened, such as last month's ruling by the Ninth Circuit Court of Appeals in New York that may make many Web links subject to copyright protection. The defendant in that case, Kelly v. Arriba, operates a search engine (Ditto.com) for photographic images. In response to a user's query, it presents the images it finds in miniature thumbnail form, along with embedded hyperlinks containing the URL of the original images. The user, by clicking on one of the thumbnails, can retrieve the selected image from the originating site.

It sounds like a pretty straightforward implementation of the Web's linking capabilities, the very thing that makes the Web the Web. Plaintiff Leslie Kelly, though, didn't want the photographs he had posted on his site displayed in this way, and he sued for copyright infringement. The trial court dismissed Kelly's claim, but the Ninth Circuit, remarkably, upheld it on appeal. The U.S. Copyright Act gives the copyright owner the exclusive right to "publicly display" copyrighted material. By allowing the public to view Kelly's copyrighted works while visiting the defendant's Web site, the court reasoned, the defendant "created a public display of Kelly's works" and was, therefore, liable for infringing Kelly's copyright.

This is surely not the last word on the subject; the defendant has asked the Ninth Circuit for a rehearing, arguing that, taken literally, the court's decision that every link to a picture subjects the linker to liability for copyright infringement will have devastating consequences for the continued growth and development of search technology and linking on the Web.

But these cases illustrate one of the things that makes the fight against 'intellectual property piracy' on the Internet so difficult: The legal system keeps telling us that we're all pirates. To paraphrase Richard Nixon, we're all infringers now. Such decisions aren't a recipe for increased respect for, or compliance with, the law.

David Post is a Temple University law professor and senior fellow at the National Center for Technology and Law at the George Mason University School of Law. Reach him at postd@erols.com. Bradford C. Brown is chairman of the National Center for Technology and Law at the George Mason University School of Law. Reach him at bbrown2@gmu.edu.

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