Tech Law 4.0? (Part 2)
In a post a few weeks ago, I offered a few thoughts about legal and policy issues that are emerging as the Net continues to evolve. I began by discussing some legal issues presented by the new services paradigm, and I promised to follow up by commenting on some of the implications of mash-ups and other activities that make liberal use of others’ content, the general trend toward ubiquity and network convergence, and the increasing use of bots and other types of intelligent agents on the Net. To break things up a bit, this post deals only with reuse of content – an issue I touched on briefly in my December 20 post about the Live Nation Motor Sports case. I’ll address the other two topics later.
Content Reuse. Napster started it, I suppose, but “sharing” and “recycling” content on the Web may be more the norm, than the exception, today. Our companies are business partners. I copy the logo from your website and post it on mine. Or, I’m Joe college student. I copy a photo from your blog and post it on my MySpace page. Copyright violations? It depends upon whether there’s some agreement that permits me to do these things, whether that’s the terms of use for your site or a written contract. Most commercial website terms of use prohibit these activities; most blogs and personal sites don’t have terms of use. So, most of the time this sort of activity does violate the content owner’s copyright, whether or not they care.
These are the easy and less interesting cases. The interesting cases arise in connection with more powerful and commercially significant technologies like mashups and search engines. Mashups aggregate content and services from multiple sites to create a site/service that seems unified from the user’s perspective. Most mashups out there now are hobby sites. (24 fans should check out JackTracker, which isn’t fully operational yet, but will be soon.) That will change, however, just as it’s begun to change with blogs. As some mashers begin to make real money from ads, some content providers are likely to want a cut. Mash-ups are just one example of the type of site or service that aggregates content from multiple sources. At present, there’s no effective (i.e. automated) way to manage rights clearance and payment processing for Web content. (Creative Commons and Licensa are examples of systems headed in that direction, but nothing in this space has yet achieved Holy Grail status, IMHO.) Similar, and even more interesting, issues arise with search engines. Is Google a mash-up that’s making use of others’ content without permission and payment? That’s essentially what cases like Perfect 10 v. Google are about.
Something like order eventually will emerge out of the chaos. The order that emerges will probably be a combination of a well developed body of case law dealing with the propriety of common linking and framing practices plus automated solutions that handle rights clearance and payment processing for those practices which the courts say are outside the bounds of fair use. For the time being, however, we lack a scalable technical and legal infrastructure for a Web that promotes legitimate, viral reuse of content. And this, of course, is the Web we’re all waiting for.
January 16th 2007, 9:24pm