A week or so ago, I warned that the MSM would launch a fierce counterattack against blogs in the face of Eason Jordan’s resignation. Michelle Malkin posted this story today about a blogger in Oklahoma who has been treatened by a Tulsa newspaper.
My guess is that The Tulsa World’s tactic of denying bloggers the privilege of linking to stories will become widespread. Unfortunately for the MSM, there are Fair Use principles in the United States that permit bloggers and anyone else to use copyright material without explicit permission. On the other hand, these principles are nebulous and allow broad interpretation from the courts. Bloggers should familiarize themselves with the Fair Use principles.
Still, the MSMs, pariticularly in this era of consolidation among news services, will get little sympathy from juries when they try to bully citizen journalists. Perhaps we need to start the Blogger’s Legal Defense Fund to help defray the costs of intinimidation at the hands of MSM and their union supporters.
As far as hyperlinking goes, a website owner may prohibit linking to his site (source Simpson Grierson on FindLaw):
Providing a hyperlink to another website on your business' internet or intranet site or in an e-mail may infringe copyright where the hyperlink itself contains a graphic or wording which is the whole or a “substantial” part of a third party’s copyright work. Your business may also be liable for authorising copying when a website, which contains copyright material, is accessed via a hyperlink provided on your business' internet or intranet site, because the material is duplicated on the user’s screen or because the user makes further unauthorised use of the material after viewing it. Although a publicly-posted website would be considered to have impliedly allowed at least duplication of material on a users' screen, that implied permission would be considered revoked if the website had an express prohibition on hyperlinking. Providing a hyperlink may also contravene trade mark and passing off laws or breach the Fair Trading Act. Under the Fair Trading Act and the law of passing off, a hyperlink containing a registered or non-registered trade mark could misrepresent that there is an association, endorsement, sponsorship or approval between the owners of the two websites being linked. Hyperlinking could also breach the Commerce Act 1986 if the two websites being linked have contractual or collaborative arrangements (e.g. Referral fees, royalty payments) and the linking amounted to anti-competitive behaviour.
Anyone feel like researching which news agency have expressly prohibited linking?
In the case of The Tulsa World their Copyright notice contains no mention of hyperlinks. I suppose, though, their lawyers would claim that this sentence, contained in the Copyright Notice on their website, prohibits linking to their site:
Without the express written permission of tulsaworld.com or the other copyright holders, the User may not use, distribute, store, modify, publish, transmit or participate in the transfer, sale or reproduction nor create derivative works from, distribute, perform, display or store any part of the Material for purposes other than the User’s personal, noncommercial use.
I fail to see the business logic of prohibiting links to a commercial website. I want people to link to mine, and it’s not much of a commercial site. Perhaps The Tulsa World pays more for bandwidth than it makes in advertising, so every hit actually costs money. If that’s the case, they should get out of the online news business.
By the way, I have not linked to The Tulsa World.
Update: Outside the Beltway has pondered this issue before
Update: Jonah Goldberg warns bloggers. (thanks to Jeff Goldstein)
Related: Eason Jordan and Alger Hiss
Update: Dean’s World has more blogger abuse.