Intellectual Property Law and the Net: Linking Documents

Yousuf Dhamee '96

A problem related to that in The New York Times case arises with the advent of linked documents. It could be argued that individuals who access/link to other Web sites without permission "deprive authorship rights even when no copy is made by the other author" (Haug). From a strict copyright law perspective, however, this argument holds little weight. Generally, in accessing a Web site no "copies" are actually made. As Haug points out accessing someone else's site is similar to providing references in footnote. Also, the fact remains that if the owners of Websites do not want their material accessed, they can simply remove it from the Web or change addressees, thus destroying all established links.

In the past, similar cases have been brought to trial involving motion picture rights and television or VCR broadcast. Film makers and actors who worked before the advent of television and video technology often objected to their work being sold to these markets without additional compensation. The outcome of the cases tended to hinge on the specific wording of the individual contracts. In instances where agreements allowed for reproduction of words/images "by any means now known or hereafter invented" the artists lost their court battles. Another contractual phrase that remains important in deciding these cases is "process analogous to." In the case of film it seems that TV/VCR technology was generally considered close enough to film technology to be treated as analogous (Radcliffe). The courts must now decide how closely Internet technology resembles traditional printing devices. Another important factor in the past has been whether or not new technologies [which the publisher/distributors hoped to utilize] could have been anticipated by the contracted individuals. In the not so distant past it is possible that authors could have failed to realize the implications of Internet technology. The courts will probably have a very difficult time dealing with cases regarding contracts established eight or ten years ago. In 1996, however, the Internet is at the forefront of the national conscious and artists will probably be expected to protect themselves carefully in their contracts or suffer the consequences.