posted Sep 06, 2000

To link or not to link? Free Speech9/6/2000; 4:02:53 PM A good summary article from Upside on the recent trends and ruling relating to linking. I think I've covered them all, but this is an excellent review (and if you encountered this story by browsing through my archives, this is an excellent article to start with).One thing jumped out at me though, relating the Ticketmaster vs. to Bidder's Edge vs. E-Bay:'The Ticketmaster v. decision therefore does not present a bright-line rule protecting those who seek to link or use spiders. Rather, it leads to a case-by-case factual analysis. The more that linking and spidering cause actual harm to an aggrieved party, the greater the chance of judicial prohibition of such activities.'Seeing the case in this light makes me realize why I approved of the ruling in Bidder's Edge vs. E-Bay, but was extremely uncomfortable with the reasoning used, which was a trespassing doctrine.Bidder's Edge was not trespassing in the sense of causing damage just by their undesired presence, they were actually doing damage by accessing E-Bay so much that they accounted for a significant percentage of E-Bay's bandwidth. It had nothing to do with linking and everything to do with what amounted to a small-scale Denial of Service bandwidth + computing resources attack.Judges should only look for real damages done, and not look at links at all. Bidder's Edge could equally easily simply be accessing E-Bay computers repeatly for the purposes of collecting statistics on applied psychology as seen in auctions; if 'linking' is the problem, then this behavior must be acceptable, despite the fact it still causes just as much damage. Linking is a phantom problem, trumped up only because they are easy to point at and show off in court. If could read Ticketmaster's site without undue damage* to the computers, and extract only information that is quite explicitly not protected by copyright, no matter what disclaimers Ticketmaster puts on their site, then more power to them.Links themselves should still not be looked at as somehow transmitting responsibility for the content on the other end.(* BTW, to the judge in the Bidder's Edge vs. E-Bay case, a bandwidth + computing resources drain is not like taking a hammer to a computer! There's more kinds of damage then just physical that one can do to a computer.)


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