Bloggers beware

I was asked at the last minute to sit in on a meeting this morning. I fully expected this legal briefing on Intellectual Property Rights to be an almighty snooze, and was counting on the coffee provided to keep me awake, but it proved to be unexpectedly interesting.

One point in particular caught my attention: the legality of deeplinking. This is an issue of which I’d been made aware some years ago when I worked for a consultancy, one of whose major clients was an online advertising trade association. The problem is that some sites don’t like deeplinking (i.e. when someone links directly to a page inside the site, rather than just the homepage) for reasons related to advertising. An advertiser will pay a large sum of money to have their banner ad on the homepage of, say, a well-known newspaper’s website, but don’t necessarily want to pay to have that ad on every page on the site on the off-chance that someone will come in directly to a page other than the homepage. Therefore, in order to keep the advertisers happy, the site insists that anyone linking to them has to link to the homepage so that we all see the ad before then clicking a link to the page we were actually looking for further in. 

Now many sites allow deeplinking, but you have to check first in their terms and conditions to see if this is the case. If they don’t specify, the law says you’re not allowed to do it. So if I want to link to this story, say, I have to check here first. And if it doesn’t say “go ahead – deeplink away”, I have to just link to the main page and hope that you can somehow find on your own the article to which I was trying to draw your attention.

Never mind that I’m sending them traffic and that, once they’ve landed on the page I linked to they may then explore more of that site, including the homepage. As an analogy, imagine that I pass you a copy of a physical newspaper or magazine, open to a specific page and show you an article which I think you may find interesting. Then a lawyer taps you on the shoulder, takes the paper out of your hand and closes it, hands it to your friend and insists that they first look at the cover and flick through the contents page in order to find the article I was trying to share…

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12 thoughts on “Bloggers beware

  1. Erik R. September 25, 2008 / 10:31 am

    I’m sorry, but that law is bullshit. It’s unenforceable.

    On my own web page and in my emails, I can provide the link to any web page or Rick Astley video on the internet. You cannot prohibit certain formations of ascii characters that might comply with the standards that define Hypertext Markup Language that I might or might not put on my web page.

    Is a lawyer for a website going to file legal paperwork with my ISP, potentially in another country, to have them remove my web page or potentially my entire website? No freakin’ way.

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  2. simonlitton September 25, 2008 / 10:34 am

    Newsflash! The law is an ass!
    And yes, as is often the case it’s not about what the law says, but about how (and whether) it’s enforced.
    But I was interested to learn that technically it’s illegal, and the (primarily economic) reasons behind that.
    The meeting also touched briefly on the legal minefield that is YouTube, although sadly we didn’t have time to get too deeeply into that.

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  3. Erik R. September 25, 2008 / 10:57 am

    YouTube is definitely an IP minefield. Good choice of words.

    The economic reasons are interesting, I agree. But I think they are also a bit ridiculous. Online advertising is about how many people see an ad (impressions) and what percentage of those people click on the ad (click-through rate). Period. When I have a popular website and I’m selling you advertising space, it’s common for me to offer you “homepage only” or “all pages” deals, as you mentioned. But I should tell you how much average traffic those pages get and charge you by the impression (or possibly by the click-through, but that’s heavily dependent on the quality of your advertisement). It’s insane of me to promise you that I will prosecute anyone out there on the internet that tries to deep-link my website. My site gets the hits that it gets on various pages and that’s that.

    Stupid corporate policy that somehow got lobbied into legislation. Of course if legislators think the internet is a series of tubes, laws like this make make perfect sense to them.

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  4. V-Grrrl September 25, 2008 / 11:00 am

    So many years have passed since I took a course in media law, before the explosion of the Web.

    It’s fascinating to me that the issue here is the presentation of the site’s advertising on the site and not the hijacking of content off the site.

    How crazy is it that publishers see the solution being a law to prevent deep linking and not the employment of a Web tool to make deep linking commercially favorable to advertisers.

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  5. Erik R. September 25, 2008 / 11:23 am

    How crazy is it that publishers see the solution being a law to prevent deep linking and not the employment of a Web tool to make deep linking commercially favorable to advertisers.

    Exactly! This directly parallels the RIAA’s misunderstanding of the new way of doing things resulting in some very rich lawyers.

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  6. Jim September 25, 2008 / 11:25 am

    Interesting, just goes to show how law is often made FOR those with money (and so frequently lacks any semblance of common sense).
    Having said that, some websites lack any vestige of common sense too (not to mention ethics and morals). You tube very occassionally but similar sites very often get themselves into trouble by refusing to block clips of “happy slapping”. Having dealt with several assaults (unprovoked and quite serious) which stemmed purely from the perpetrators wish to put a clip on the web of them attacking someone, I wish more was done to prevent this rather than keep the advertisers happy.
    Again, it would be very hard to enforce with ISPs in various countries but at least if the legislation was created they could no longer deny they were doing anything wrong (and we’d find SOME way to enforce it!!)

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  7. simonlitton September 25, 2008 / 1:59 pm

    Erik: Online marketers have been arguing for years now that clickthrough is not a true measure of the effectiveness of an internet advertising campaign. It’s about raising brand awareness, see?
    Again, apply the logic to the offline world, and imagine an advertiser not wanting to spend money on TV or “outdoor” (billboard) ads unless you could prove that the viewer had gone immediately to a shop to buy the product after having seen the ad.
    The fact that people’s online behaviour can be so closely tracked can be great when it comes to monitoring pageviews and targeting specific demographic groups, but it also means that advertisers can obsess over (and misinterpret) statistics and forget the bigger picture.

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  8. Erik R. September 25, 2008 / 4:51 pm

    That’s true, somewhat. Charging advertisers for both impressions and click-throughs makes the most sense to me.

    Evaluating the effectiveness of an online advertising campaign is a voodoo art.

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  9. Di September 26, 2008 / 7:27 am

    I might quietly pretend that I didn’t read this very interesting post.

    I had a lawyer on my case a while back – different issue and yet … as ‘interesting’ I think. I had found a wonderful poet, posted a poem and made a link to buying her book.

    The lawyer for the poet said I had to remove the poem or pay a lot of money to post it on my blog. I was bemused. It was no skin off my nose not to blog her work forward out into the world, and I took it down immediately.

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  10. simonlitton September 26, 2008 / 7:53 am

    Di: I can understand someone not wanting you to abuse their work or pass it off as your own, but when you’re providing free publicity for them, saying “This is really cool – go and buy it”, you have to wonder what their problem is.
    Then again, think of all those poor starving lawyers – they have to make a buck somehow.

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  11. Di September 27, 2008 / 8:14 pm

    I know, I saw the error of my ways and respected the lawyer’s right to earn his fee by telling me off for unasked for publicity for the poet …

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  12. Janet Ching October 28, 2008 / 12:47 am

    Thanks for sharing! I think there is still alot og grey area in terms of violating intellectual property.

    Like

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