Representing clients in a changing world

This item, from Techdirt, should give some pause to lawyers who represent copyright holders: the top selling MP3 download on Amazon last year was Nine Inch Nails’ Ghosts I-IV album.  As Techdirt explains, this means, “[i]n other words, you could go on pretty much any file sharing system out there and legally download the music for personal use… and yet it was still the top selling downloadable album (this is on top of all the money earned by Reznor’s other business models associated with this album).”

A lawyer’s job is to represent the best interests of his client.  It may well be that the best interests of copyright holders in an environment where digital information can instantly be duplicated and instantly be disseminated world-wide is to find new business models, not to persist in the 20th Century habit of filing infringement lawsuits.  It seems silly, for example, (as IP Watchdog points out) for Gatehouse Media to be suing “the New York Times alleging copyright infringement by the New York Times because one of the papers owned by the Time, namely the Boston Globe, was linking to original articles owned by Gatehouse Media.”  Gatehouse’s allegations of infringement are based on the fact that the links, though they provide attribution to Gatehouse, are “deep links” — that is, they are links to the articles themselves that, therefore, bypass Gatehouse’s homepage (and, presumably, the advertising on the home page).

The court in Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-07654 (CD Calif. Mar. 27, 2000)(pdf), found that deep linking was permissible. Tickets.com had provided deep links to pages on Ticketmasterrs website to guide readers precisely to the spot the could purchase tickets for specific shows. Ticketmaster wanted readers and customers to come through Ticketmaster’s homepage. The Court stated:

The customer is automatically transferred to the particular genuine webpage of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.

The court concluded the deep links provide by Tickets.com did not constitute copyright infringement. Nevertheless, other deep linking cases (discussed by Gayle Campbell and Patty Steib here) make clear that the legality of the practice (like so much in copyright law) has not been finally determined.

But Gatehouse Media’s lawsuit seems intended to stop a practice that can only benefit Gatehouse Media by bringing more traffic to its site.  And what good are links if, for example, I left you wandering through a webiste trying to find the right page rather than sending you straight to it?

For some lawyers, unfortunately, a right is only something to be vindicated, not just one factor among many that need to be taken into account in seeking the client’s best interests.