The TotalNews Case - Confusion in Comprehension, Not Display
May 19 1997
Mr. Finkelstein is currently a professional computer programmer and consultant, and a freelance electronic activist.
He has degrees in Mathematics and Physics from MIT. He was webmaster
for an award-winning academic WWW site. More recently he has moved to industrial WWW application development. In addition, he has played a notable role in several electronic free-speech controversies. He writes frequently on issues related to computers and civil-liberties.
By Seth Finkelstein
It's important to understand that a WWW link is not a mysterious
computer program or the linked-to material itself, but merely a
reference or guide as to where that information can be found. It is a
statement of location, of what machine has certain information, and the
path to use to request it. Of course, this does not mean no violations
of law can be committed with links, just like the English sentence "John
Doe wrote the article which you can find in magazine X on page Y" has
the potential to be false, defamatory, and the like. But such a sentence
is not a copyright infringement, it isn't the material in the article
itself, nor a "public display" of it, nor a performance, nor a confusion
or a dilution of the magazine's trademark.
TotalNews provides a service by collecting these particular
locations of news services. The plaintiff's allegation that TotalNews
is "parasitic" is a little like calling a job referral service a
parasite - after all, it doesn't provide the employees itself, it just
tell people where to find them. Or even better, think of the search
engines! Their whole purpose is to organize other's content, providing
none of their own. The whole idea of the web wide web itself is
to provide ways to seamlessly connect material from different providers.
Again, all TotalNews does is refer to the content of various
news servers. There are severe problems in many theories advanced as
to why TotalNews is "in the wrong" in providing this set of
references. Changes intended display? Nonsense, text browsers do that
far more dramatically. Advertising delivering another's content? That's
how many search engines get revenue. Free-riding? Every list of
locations (links) would be guilty.
The trademark claims of confusion and dilution seem to rest on
a idea that framing itself implies association. But the simple layout
of the formatting seen in TotalNews (buttons on a left panel, main
display to the right of that strip) leaves no impression that they
claim the content as their own, or have any connection at all. It's
essentially no more than a common link list with a very nice way of
displaying the results.
Cases such as the TotalNews lawsuit one reason I think the world
would be better off if there was a general rule requiring complainants
in areas of fast-moving technology and murky law to exhaust all
reasonable technological remedies before resorting to the legal
system. The potential negative effects of a bad precedent arising from a
ruling by a judge ignorant of how the world-wide-web works are
profound. Land doesn't reshape how you walk on it every few years, but
information technology changes so fast any decision could be obsolete or
a bad fit with common practices the day it is released.
n discussing this case with many people, I've encountered a
great deal of confusion over what TotalNews does and does not do. I am
a programmer with an interest in law, so I sometimes find myself
giving long detailed explanations about basic technical elements of
web legal cases. The most common misunderstanding here seems to be
that TotalNews somehow copies or relays material from other
sites. This is a part of one of the plaintiff's claims:
"10. Simply put, Defendants are engaged in the Internet equivalent
of pirating copyrighted material from a variety of famous
newspapers, magazines, or television news programs; ..."
But this accusation simply is not true. Not one byte of
other's copyrighted web pages is coming from the TotalNews web
server. What it is doing is providing a convenient collection of
locations for you in one place. This will become very obvious if the
network connection to any one of the other sites is broken, or if
those sites have a web server malfunction. All that comes from
TotalNews is a set of location and formatting information.
Given the great ease with which a web browser uses location
information to retrieve the material itself, people too readily
conflate the references with the content. This misunderstanding leads
to all sorts of incorrect analysis which can be traced backed to that
faulty premise.
There are severe problems in many theories advanced as to why TotalNews is "in the wrong" in providing this set of references. Changes intended display? Nonsense, text browsers do that far more dramatically. Advertising delivering another's content? That's how many search engines get revenue.