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June 20, 2002

Bashing NPR
Posted by Teresa at 12:48 PM *

Over on Electrolite, Patrick has posted a rich, full-bodied denunciation of a new NPR policy:

According to Boing Boing, National Public Radio demands that you request permission before linking to any portion of their web site.
Linking to or framing of any material on this site without the prior written consent of NPR is prohibited.

Please use this form to request permission to link to npr.org and its related sites.

And to think that after I appeared on All Things Considered on April 17, 2002 to talk about the late Damon Knight, I thoughtlessly linked to their Real Audio file of the interview. Right here on Electrolite, I linked to NPR’s Real Audio file of my interview. And all that time it was “prohibited”! Imagine that.

Of course, it isn’t “prohibited.” Or rather, it’s “prohibited” with exactly the same legal force as I have when I say “False legal claims designed to intimidate the public are hereby prohibited. Signed, Me.” …

(Go read the whole thing, and keep an eye on the links.)

To me, it seems like this issue should be fairly straightforward. Say you put up a publicly accessible website. It has your own copyrighted material on it, which probably isn’t a single coherent unitary work.

Now say someone links to an article on one of your pages. The material referenced by the link is still on your website. It has not been copied to some other site. The link itself is on the other guy’s site, and your own site is not altered by its existence. The link just tells browsers how to get to your article; and if your website is publicly accessible—in a word, published—that information is not a secret.

Where in all that is there anything that requires permission?

The essential nature of a link is that it says “Here is where to find this.” That is not a new thing, and it shouldn’t be an occasion for new law.

The obvious analogy is to footnotes. The person who creates a footnote is saying, “There’s material relevant to my point in another work by someone else; here’s where to find it, and” (optionally) “here’s a bit of the pertinent passage.” This is an utterly established practice, couldn’t be more established if it tried; and it doesn’t require anyone’s permission. A website link differs only in that it lets your browser take you there directly, instead of giving you cryptically abbreviated instructions on how to find it in a library; which is a simply a matter of speed and convenience, not a change in the essential action.

Another analogy would be to program listings and reviews in brief. I see in the Yahoo TV listings that at 9:30 this morning channel 68 (WFUT) showed the 19 July ‘99 episode of Isabel, Mujer Enamorada, and in this week’s New Yorker that the Brooklyn Museum of Art is hosting the “Star Wars: The Magic of Myth” exhibit through July 7. Both these listings are accompanied by descriptions, and I’m absolutely certain that neither required the permission of WFUT or the BMA before they could be published. And if the New Yorker had an online edition and the BMA listing included a link to the BMA’s website, I’m still absolutely certain that no permission would be required. Computerizing an everyday action doesn’t make it a different action.

When you broadcast or publish something, you make it public, and the fact that you have done so is public information. Once it’s out there, you don’t have control over the way people approach it. They can reference it, describe it, praise it or blame it, and quote bits of it by way of illustrating their points, just as they please. This is Fair Use, seen here (for once) in its native habitat. It’s also freedom of speech. It’s the public discourse. It’s what NPR used to stand for.

There’s another point that’s so far been overlooked in the general furor, which is that NPR’s attempts at control go beyond requiring permission to link to their pages. Here’s a link to their Request permission to link to NPR form, in case you want to follow along. In fact, here’s A WHOLE BUNCH OF LINKS TO IT, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BWAH-HA-HAH! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . So there!

[*cough*]

Their form begins, “Linking to or framing of any material on this site without the prior written consent of NPR is prohibited.” This is wishful thinking, but they’re counting on people taking it to mean “prohibited by law”; which on the one hand is simply not true, and then again on the other hand is a shabby, disingenuous piece of weaseling.

The form then asks for your name, e-mail address, phone number, home page URL, the URL of the page on which the reference will appear, and the NPR content that will be linked from the page. They ought not be asking at all, but it’s still just information about the link.

But the next thing they ask for is the “Proposed wording of the link and accompanying text”, and that is plain flat-out none of their business. We are not in the world of reprint permissions here. This is the universe of public discourse, and I’m hard-pressed to see that question as anything but an attempt at prior restraint.

(Shame! Shame!)

Next they want to know how long the link will be up, and whether you’ll be using the NPR logo in connection with it. These questions make me wonder whether an earlier version of this document originated in their publicity department, but they aren’t otherwise interesting.

The last section, “Information about the entity that controls the Web site”, is a gross imposture. It’s one thing to put a questionnaire on the web that asks for more information than people really ought to give. Most people won’t, and some will; but asking is within the rules. It’s another thing for NPR to ask for data that is not theirs to demand, under the clearly implied but wholly false representation that they can deny permission to link to their site to anyone who fails to furnish it.

This information includes: The controlling entity’s formal name. Their mailing address. Please describe the entity’s principal activities. Is this entity a[n] individual, partnership (give the full name of at least one General Partner), for-profit corporation (incorporated in which state?), not-for-profit corporation (ditto), government agency, or other (please specify)? Contact information for the person who will maintain the link: full name, e-mail address, phone, fax.

No kidding, suckers? Give me the password for your webmaster’s personal e-mail account plus a map showing the location of all his cool toys, and maybe I’ll tell you. I don’t think they asked Patrick for that much info when they had him on All Things Considered. I know for sure they didn’t tell him that he couldn’t link to his own words from his own webpage without their prior written consent.

Comments on Bashing NPR:
#1 ::: Bob Webber ::: (view all by) ::: June 20, 2002, 04:35 PM:

I agree with all of the right-minded people who consider attempts to prohibit linking to any publically visible hypertext anchor point in a published document. I think, though, that copyright lawyers have strained at far smaller gnats than this (and I'll again recommend Jessica Litman's excellent DIGITAL COPYRIGHT, though I'm currently stopped (pleading prior engagement with the documentation of low-level magnetic tape input, output , control, and status functions in the Solaris 8 C libraries, rather than boredom)). The really small gnat here, to my mind, is an tag in HTML. Framing and trademarks might be and probably are (respectively) different issues.

I don't know enough about the fundamentals of the law to say whether or not causing you to incorporate material from Party A in a presentation purporting to originate from Party B amounts to Party B copying from Party A and falls within the limits of Fair Use. One of Litman's central points is that Fair Use is an extremely narrow public-good right, defined in the face of active legal representation of people with an interest in claiming the broadest possible ownership rights.

Figuring out how framing fits into the body of law is going to be tricky, because the nearest physical publishing equivalent would be if somebody gave you a kit to paste a different publisher's cover onto a book you got for free. Kind of like Taral's project with Harlequin Romance covers and SEEDS OF CHANGE. (Though the cover of a book might have too much special juju in commercial publishing law for this to be a balanced analogy.) It does seem pretty clear to me that framing is different enough from providing a normal link in HTML in the dimension of property rights and reputation considered as property that these two acts can be guaranteed to be treated in the same way by IP law.

Trademarks are a different department than copyrights, with their raison d'etre solely being solely that of giving the trademark owner control over the use of its mark. Using an IMG link to somebody's registered trademark, such that it displays on an unrelated web page whenever the page loads might well turn out to be prohibited by law. Attacking a company's reputation by using an IMG link to their trademark in a way that is seen to lead inevitably to their defamation is probably illegal already, and establishing its illegality through legislation is something a lot of people would pay good money for, if they haven't already.

#2 ::: Bob Webber ::: (view all by) ::: June 20, 2002, 04:38 PM:

Argh.

That was "...an <A HREF="..."> tag..."

That is, a standard HTML tag that indicates a hyperlink to some other document, but doesn't actually retrieve anything until you click on the web page.

#3 ::: Janet Lafler ::: (view all by) ::: June 20, 2002, 06:03 PM:

Maybe I'm dense, but I don't even understand why NPR would *want* to "prohibit" people from linking to their site. Don't they want people to visit their site? (If not, why do they even have a web site?) Don't they want people who would otherwise not know about their programs and content to find them?

Presumably, their interest is in controlling the way that they are represented on the web, but still, this seems like it would do them more harm than good if people took it seriously.

#4 ::: Janet Lafler ::: (view all by) ::: June 20, 2002, 06:12 PM:

Oh, and reading the quoted Wired interview with NPR's ombudman, I find that I'm suddenly a member of the paradigmatic bizarro interest group: the left-handed, socialist diabetic (okay, I'm really ambidextrous).

#5 ::: Kevin J. Maroney ::: (view all by) ::: June 20, 2002, 08:02 PM:

The third letter I wrote to NPR yesterday concluded with these two thoughts:

The only people who are going to be deterred from linking to your site are people (like me) who would make links to your site to help spread the word about NPR's good content but who don't want to fill out a 17-point form and wait an unknown amount of time before posting the link.

Again: Nothing good comes to NPR from this linking policy. All that comes from this linking policy is bad will. NPR survives on good will. Think about that.

#6 ::: Keith Thompson ::: (view all by) ::: June 20, 2002, 10:38 PM:

You've inspired me to have a little fun with their permission form. I've decided to obey their prohibition. In particular, I've filled out and submitted their form, asking their permission to link to the form itself from my home page (http://www.users.cts.com/king/k/kst/) for the express purpose of making fun of it. Of course, if they don't say I can link to it, I'll have to make fun of it indirectly.

Their response should be interesting.

#7 ::: Bob Webber ::: (view all by) ::: June 21, 2002, 01:05 AM:

Janet, I don't know if it's the case with NPR and its linking policy, but its quite common for business to post disclaimers and request signatures on waivers that don't actually change anyone's recourse to the law if something goes wrong. It's like posting "No Trespassing, No Hunting" signs in rural areas of the US: plenty of people post such signs to limit their liability, but make no other effort to actually enforce the prohibition.

It's possible that NPR has made the all-too-common mistake of taking advice from an attorney when there was no action pending or threatened. It seems to me that darned little good comes of this, and a great deal of harm (e.g. the collapse of general aviation manufacturing in the United States). They might have been convinced that legal cover w.r.t. linking and framing is important.

Cui bono? Lawyers. But that would be barratry.

#8 ::: Simon Shoedecker ::: (view all by) ::: June 21, 2002, 12:56 PM:

Why is NPR doing this? Perhaps in part in an attempt to weed out riffraff and abusive links, but probably more simply to keep intellectual control over referrals to their material.

The thing is: everything that Teresa says is correct (and brilliantly put, btw), but a lot of people are disconcerted by the fact that internal links and external links look pretty much the same (unless you know what you're looking for, which most experienced web users do). Perhaps NPR is afraid that links will make it look as if their material belongs to the person who linked to it. That's almost certainly part of what bothers people who oppose deep linking.

I'm not saying these arguments hold up, or that their solution is of any use whatsoever. But when someone does a dumb thing, it's helpful to try to figure out what they thought they were doing.

#9 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 21, 2002, 05:11 PM:

Much to chew on here. Bob, my point -- okay, one of my points -- is that if it's a plain [a href="foo"] link, copyrights and trademarks aren't an issue. The linking site hasn't copied off the linked-to content; it's sent readers there to read it, which is presumably why the content was put there in the first place. Copyright holder still has exclusive use of content, check. Linking site has not copied or otherwise misappropriated content, check. There's no issue.

I don't much care for frames; the ones that display the whole page are tolerable, I suppose. IMO, the nearest publishing equivalent to frames is "whatever imaging and printing method you used to produce the final pages". That is to say, it doesn't matter how the image was produced; it matters what the reader sees.

I'm afraid I'm going to have to stretch a bit for a hardcopy analogy.

Say you produced an edition of =Making Light= which printed my essays in black but had my name, intros, copyright notice, and previous publication info printed white-on-white, and you put a colored border which prominently features your own name around the edge of each page. You follow me so far? If that happened, it wouldn't matter that my name, intros, and indicia were there in theory, or were visible on the mechanicals and seps and plates, or were visible if you ironed the printed pages until they turned brown; nor would it matter that =Books in Print= listed me as the author. What matters is that the readers would see your name on my content.

Re your later remark: Lawyers don't justify their existence by saying "Sure, go ahead; it'll probably be all right."

Janet, I've known more than one person who's believed that having outside links on their sites automatically meant they were endorsing whatever was on those sites. Some even believed they could be held responsible for the content of any sites they linked to. This is dim, but it happens. NPR has taken it one step further, and decided they might be held accountable for sites that link to them. The phrase "thick as two short planks" comes to mind. For the rest of the "how", see Simon's remarks, which nail it down nicely.

When I saw the line about left-handed diabetic socialists, my immediate thought was that I had to know at least one of them. Thanks for confirming it so promptly.

Keith, you have to let us know what they say. It'll be interesting to see how long they take to reply.

Kevin, I can't say much to that, but I can't improve on it, either.

#10 ::: Bob Webber ::: (view all by) ::: June 21, 2002, 07:04 PM:

In broad terms, I agree with you about linking and framing of whole pages. Your analogy for frames is pretty good, with the addition that in some cases your name is still there in visible ink, but in such tiny print you have to go out of your way to realize that you wrote it, not me. Well, that or actually read it.

But I guess I haven't managed to convey the essential difference of trademarks. Putting transparent stickers over trademarks on products in stores or in advertisements might well be actionable, again with no reproduction of the original.

I don't believe that there is any "Fair Use" of trademarks, as the legal rationale for existence does not include furthering the public good. They're like hallmarks, I guess, and as defensible and proprietary as one's own good name.

#11 ::: Todd Larason ::: (view all by) ::: June 22, 2002, 03:42 AM:

Not that it makes any real difference to your point...

The Yahoo TV listings cited (as well as nearly all other TV conglomerated US TV listings, aside from TV-Guide/Gemstar-branded ones) are supplied by Tribune Media Services, and are generated not only with the approval but the active support of the TV stations.

For whatever reason, the Blockbuster/DirecTV Pay-Per-View channels choose not to cooperate, and thus are not listed; that's the only major holdout I'm aware of.

#12 ::: Keith Thompson ::: (view all by) ::: June 22, 2002, 03:14 PM:

Slashdot points out that NPR is reconsidering (but has not yet changed) its policy.

http://yro.slashdot.org/yro/02/06/22/151257.shtml?tid=95
http://www.users.cts.com/king/k/kst/not-npr.html

(BTW, is it possible to put real links in these comments? It seems like it just kills angle brackets and everything between them.)

<Like this.>


#13 ::: Keith Thompson ::: (view all by) ::: June 22, 2002, 03:18 PM:

(Oops, I hit POST instead of PREVIEW while I was still experimenting. The misleading "<like this>" looked "&lt;like this&gt;" when I wrote it.)

#14 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 24, 2002, 01:00 PM:

Bob, I'm still not getting your point about trademarks. It could be the heat.

Todd, that may not make any difference to my point, but it's interesting.

Keith, I've been trying to figure that out myself. In the meantime, I have the power to delete or amend posted comments, so if one of your comments gets scrootched and I'm not too busy to fix it, drop me a note.

#15 ::: Matt McIrvin ::: (view all by) ::: June 25, 2002, 01:13 AM:

A small, depressing thought... Might linking be considered an infringement on the grounds that *the URL itself* is protected by copyright? (And, if so, is the domain registrar a part owner? Is the situation different if you use a site IP address as opposed to a DNS address?)


#16 ::: Alan Hamilton ::: (view all by) ::: June 25, 2002, 05:13 AM:

The trademark issue is "reverse passing off". Regular "passing off" is when you make something and put someone else's trademark on it. Reverse passing off is when you take something produced by someone else and put your own trademark on it. So if I put NPR's content in a frame reading "HPR -- Hamilton Public Radio", they might conclude I'm trying to pass off their content as mine and have violated their trademark.

#17 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 25, 2002, 07:49 AM:

Oh, now I see. I was starting to feel perfectly dense about the trademark angle.

Matt, I can't think it's at all likely that URLs would ever be copyrighted. That would be like trying to copyright the volume, issue, and page numbers of a magazine.

#18 ::: Kevin J. Maroney ::: (view all by) ::: June 25, 2002, 12:15 PM:

Alan: As I implied in my earlier comment but did not state explicitly, I think that NPR's concerns about both trademark dilution and copyright infringement are not completely unreasonable, and you've pointed out methods by which both can occur.

Deliberate trademark dilution is a tort, and copyright infringement is a crime. NPR's linking policy doesn't give them any greater ability to enforce their rights than current US federal law does, and it annoys people who *aren't* trying to violate NPR's rights.

#19 ::: Todd Larason ::: (view all by) ::: June 26, 2002, 05:33 AM:

re: "trying to copyright the volume, issue and page numbers of a magazine."

There was (or is?) a long-running court battle between WestLaw and Lexis over WestLaw's copyright claims on page numbers. See http://lists.essential.org/1995/info-policy-notes/msg00019.html for an overview of the issues as of 1993 -- the 8th circuit court of appeals upheld the claim in 1986.

http://www.infotoday.com/newsbreaks/nb0621-4.htm appears to have final status -- eventually a court of appeals decided the page numbers weren't copyrightable, and in 1999 the Supreme Court declined to hear the case.

So, if the issues are the same, URLs probably aren't copyrightable -- but it might take 14 years of court time to decide that for sure.

#20 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 26, 2002, 07:48 AM:

No kidding?

I'm glad they finally decided page numbers aren't copyrightable. Upholding the original decision would have been, in my considered and highly technical opinion, Way Dumb.

I hope that if the question ever comes up with URLs, they'll take the appellate court's decision as a precedent and spare us the fourteen years of litigation.

#21 ::: Bob Webber ::: (view all by) ::: June 27, 2002, 07:18 PM:

The West Publishing page number copyright cases are far, far more than way dumb. They are a smoking gun pointing to deliberate encouragement and support of non-competitive behaviour, connived at by the Federal court system, the Reagan/Bush Department of Justice.

On the "cui bono" face of it, the decision by the Court of Appeals allowing copying of WestLaw's page numbers by CD-ROM publishers and other vendors was probably driven by a combination of the Clinton Department of Justice getting out of the way and an acknowledgement that "Vendor Neutral Citation Systems" would displace WestLaw page numbers and make the noncompetitive support of WestLaw by the Federal government too obvious to maintain.

See, the key fact here is that Federal courts would only accept citations based on West Publishing/WestLaw page numbers and "star pagination" and the collection of parallel citations and legal history collected by West Publishing in their documents in legal briefs. As explained in John Larason's first citation, the DoJ had connived with West Publishing to keep an otherwise definitive legal reporter database compiled by the USAF and in the public domain from being kept current for ten years. LEXIS settled with WestLaw in a secret agreement that let them use WestLaw page numbers.

So what this amounted to was that the Federal court system had arranged that every attorney who wanted to argue a Federal case essentially had to pay West Publishing, because they had a copyright on their page numbers. The parallel with URLs as a method of specifying indexes and offsets into documents is fairly exact, and frightening.

The last line of Larrason's second citation is, "One thing is sure: It ain't over yet."

West Publishing is part of the Thomson publishing group, so its trail leads back to "Lord Thomson of Fleet," originally the publisher of a minor paper in North Bay, a man famous in Canada for some years for his remark that, "A television broadcasting license is like a license to print money." This is an enterprise with a history of knowing how to exploit government interference with a market.

#22 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 28, 2002, 10:02 AM:

Good lord, I had no idea. What a cozy deal -- shades of the old Crown Monopolies! Contrast that with the Congressional Record, which is public domain all the way.

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