Whose Page Is It, Anyway?

Dr. Dobb's Journal December 1999

Ted Nelson's vision of publishing in the Xanadu paradigm deals clearly with the question of what people can do with your published material: pretty much anything they want, as long as they pay for it. The World Wide Web vision isn't clear on either issue. There is no consensus on what people can do with your published material, and the concept of paying for its use somehow slipped through the cracks.

Here are a few of the open questions about the use of others' material on the Web:

Fair use. International copyright law allows limited copying of copyrighted material under a fair-use doctrine. This includes copying small portions of a work in reviewing it, but many sites post legal-sounding policies that imply that fair use doesn't apply to them. Surely they're just blowing smoke, but do you want to risk it?
Linking. That picture on your site doesn't seem like it would fall under fair use, so I drop its URL into my page. The picture appears on my site as though I had copied it, but all I've done is link to it. Is this fair use?
Framing. I link to your whole page, displaying it in a frame within a document I create. I haven't copied anything, but I have taken your content for my purposes, which may conflict with yours. Do you have any recourse? And how can legislation address this issue without getting tangled up in details of implementation?
Trespassing. That's what eBay accused AuctionWatch of when AuctionWatch started linking into eBay's site. It's more neutrally called "deep linking" and it's the same issue that came up in the Ticketmaster brouhaha not so long ago. You create a site that provides a service via a front end, and I provide my own front end to your service. Your front end may have advertising or other means to benefit you when anyone uses it, and by bypassing your front end, I give the user the benefits of your site while denying you your designed-in benefits, in fact grabbing similar benefits for myself.
Sounds like theft, but what have I actually done? Simply pointed to publicly accessible pages. Aggregated publicly available information. Linking, surely, isn't a crime. Or is it? A Swedish judge opined that, although linking to sites that publish pirate music isn't in itself a violation of copyright, it could be prosecuted as aiding and abetting copyright violation.
Annotating. This one's similar to framing, but shows how a law against framing could go awry if overly broad or overly narrow. The best-known purveyor of annotation software is Third Voice. With Third Voice software, I can attach notes to any site I like, and these can be read by anyone else who owns the Third Voice software and has it turned on. No modification is made to the original site and its contents are not copied; it's basically a framing trick.
People who dislike Third Voice (apparently the majority) say they want complete control over the site they labored so hard to produce, that the technology encourages rudeness, pornography, spam, stalking. People who support it say it's as though I bought your book and now you're trying to tell me what I can do with it. When you buy a book it's clear that it's your property. Web pages, though, are usually published for free. Have you bought something simply by visiting a site? If the model of publishing applies to the Web, the person who posts a web page is selling it, even if the price is free.

But does it? The question is, "Whose page is it?" At this point, apparently, nobody has the answer.

Michael Swaine
editor-at-large
mswaine@swaine.com