April 17, 2000

11:03 AM

"When you visit a site, you can't take that information and use it for your own purposes, especially for commercial purposes," the lawyer says. Is it just me, or will this ruling render every single search engine illegal?
posted by jjg (13 comments total)

I'm not sure that it's parallel. You can make a good case that indexing (for that's what a search engine is doing) is "fair use". It isn't trying to replace the target site, merely to help people find it.

I can't use Alta Vista *instead* of some other site; all Alta Vista does is help me locate the other site.

But Bidder's Edge was making it so that eBay was getting fewer hits because most of what people would want to know could be gotten from Bidder's Edge instead.

Part of "fair use" is how much of the material you use. A small quotation is permitted, and that's all that Alta Vista (or equivalent mechanisms) provide. Bidder's Edge was going way beyond that.

There's also an issue of "theft of services". For Bidder's Edge to keep its data sufficiently current to be worth accessing, it was having to put a serious load on eBay's server. Alta Vista's spider is so much less of a load as to be nearly non-existant.
posted by Steven Den Beste at 12:30 PM on April 17, 2000

Alta Vista may only provide a small snippet, but it does use the whole page.

I think that yeah, this does affect any search engine that tries to make money off of people using the search service, but there are two things going for the search engines...

1. Common practice. We're already used to it, and it's obviously not bothering anyone. We can consider search engines an exception without necessarily permitting a commercial free-for-all (though we may have to watch and make sure they don't take undue advantage of the exception).

2. You can tell a search engine to go away using a file called robots.txt (that links to some information on the standard format for that file). eBay could just tell Bidder's Edge to go away.

Don't forget that search engines aren't only thing at stake here. Remember mathowie's resume experiences? There's a lot of this kind of crap going on and it's not all to your benefit like search engines are... I'd call the resume instance outright theft, and this ruling might give mathowie a way to claim damages (if he cared; this is just a for-instance).

Don't forget there's two sides to this!
posted by Jeremy Bowers at 12:44 PM on April 17, 2000

oopss... "eBay couldn't just tell Bidder's Edge to go away."
posted by Jeremy Bowers at 12:46 PM on April 17, 2000

A couple things - first off, robots.txt is voluntary. If a company doesn't want to adhere to it, it doesn't have to. Now, for a search engine that depends on gaining access and indexing as much as it can, it is in their interests to respect robots.txt in order that web folk will just cut access to certain specific things - and leave the rest to be indexed. It helps them gain access. Not so for these other companies.

The second thing is that there are two "levels" of copyright in action here. Fair use doesn't really come into play that much - because that deals with each little bit of information on its own. But there is another copyright - the copyright on the compilation.

I once designed and helped edit a book - the authors came from all over. Almost all of it we'd published on the net already, and anyhow the individual authors own their own copyright - we just had rights to first electronic publication and then for the book. BUT - the editors own the copyright on the aggregation of material - on the compilation. What that means is that even if someone managed to gather all of the individual permissions they still would not have the right to publish all of them together without acquiring the rights to the whole.

I think eBay can quite correctly assert that although the net allows for individual items to be referred to or quoted, the aggregation of the material is a separate matter. I don't know, however, if they registered the copyright on that level, which is significant when seeking commercial redress.

Sorry - that's really long! One last thing - that guy who was quoted is clueless. There are lots of good arguments on both sides of this - but his isn't one of them.
posted by mikel at 2:45 PM on April 17, 2000

Just a small point:

As of the US ratification of the Berne Convention, it's no longer necessary to "register" a copyright. You automatically have a copyright on everything you write. (In a sense, I have a copyright on what I'm writing now, but Matt can clearly justify his duplication of it because I'm putting it in a place which makes no sense without such duplication.)
posted by Steven Den Beste at 3:24 PM on April 17, 2000

Steven: Matt clearly leaves your copyright in your hands. See the bottom of the page :-)

And mikel, I know robots.txt is only voluntary, but just the fact it exists is a point in favor of the search engines. The net seems to have accomodated this solution.
posted by Jeremy Bowers at 3:37 PM on April 17, 2000

Whether Matt leaves the copyright in my hands or not is not the issue. Even if he didn't explicitly do so, I would still have copyright.

The point is that Matt is distributing what I write. He can defend doing so because it is clear that by my act of posting it here that I am implicitly granting him permission to do so (which indeed I am). On the other hand, the things I post to my own web site could not be duplicated by him without him asking my permission.

Simply acknowledging someone else's copyright doesn't give you the privilege of violating it.
posted by Steven Den Beste at 3:48 PM on April 17, 2000

Yeah - we're all on the same track here for sure.

The trick about Matt's copyright is that we may own our individual copyrights - we do, for sure. But he still has a copyright on the aggregation, the compilation. So, in theory, even if each of us gave our permission he'd be in the mix too and his copyright (unless specificially disclaimed) would be something to consider.

That's the argument against Bidder's Edge - or one of them. And it doesn't make search engines any more problematic than any internet use does, by anyone. I.e., you are making an exact copy in RAM and if you use a cache on your HD every time you surf any page. But that's never really been at issue, as far as I know, although it is an interesting technicality.
posted by mikel at 4:05 PM on April 17, 2000

To qualify the Berne note: you own the copyright on everything that you produce not-for-hire. However, without publication of notice, and further, registration (which is still taking place), there are certain forms of redress to which you are not entitled.

So, yes, you do still sometimes have to register.

And, please, let's not even *open* the "but it makes a copy in my browser cache" can-o-worms again until we have a judge around with a clue, 'k?

Cheers,
-- jra
posted by baylink at 4:18 PM on April 17, 2000

uh sorry about the above post. I'm drunk.

My point was about metasearch engines, does anyone know how copyright laws would affect them?!

chaz
posted by chaz at 4:37 PM on April 17, 2000

My apologies for being unclear. Take a closer look at other discussion sites. Quite frequently, you sign away all rights to your postings. In fact, that tends to be the case more often then not.

The notice at the bottom emphasizes the site doesn't work that way.

And, to stay on topic :-), one of the reasons most sites do that is to prevent this very thing from happening. Theoretically, as owner of copyright you might be able to retract permission for display. Therefore, you have to sign all the rights away that you can so that the Big Money doesn't have to worry about that remote eventuallity.

As an interesting counterpoint to that trend, take a look at eBay's permission statement sometime.
posted by Jeremy Bowers at 5:07 PM on April 17, 2000

Jeremy--

About the permanent signing away of rights on a discussion board. Is that really an issue on most boards? Many board tools let you delete your post at a later date. So if you get huffy and retract permission, you just delete your post. Except here at Metafilter, where I am convinced some day my clumsy HTML is going to turn everything avocado green or something....

A "delete" function makes issues of permission pretty moot, don't you think?

That said, I hope the final ruling is tailored narrowly enough not to make it illegal to so much as link to a website. Where do you draw the line about gathering copyrighted information? If I have a page that lists the sale price for my used car, and Yahoo! indexes my page with the cost of that car in the description block, did they violate my copyright? Now people don't have to come to my site to see what the car costs, they can compare it right over the web. Legally speaking, how different is that than what Bidder's Edge did?

A bad final ruling could make things very ugly out there.
posted by mrmorgan at 10:05 PM on April 17, 2000