2005-02-22

Copyright v. Contract Memo

re: Bates v. Tulsa World

Copyright law covers what you can fairly excerpt, however, contract law (not copyright law) determines whether you can link to the site. If you "agree" to not link when you register with the site, then that's valid and enforceable. If you bypass registration via bugmenot.com, then the steel jaws of contract have not closed.

Don't confuse the two.

Related Post: How Deep Linking Can Sink You / Deep Man / Specht v. Netscape Communications Corp / Copyright v. Contract

3 Comments:

Anonymous Tim Hadley said...

Does using a bugmenot.com fake registration really keep the steel jaws of contract from closing, or is it more like a misrepresentation that would lead a judge to frown upon an individual who came back and said, "Hah! They didn't get me because I used a fake registration!"

It's true that the person who puts in the fake registration name and password probably hasn't actually seen the terms of service. But on the other hand, can one genuinely say, "I haven't accepted these terms of service because I intentionally avoided looking at them, even though my conduct in logging into the website seemed to communicate assent to the terms"?

(Personally, I loathe terms-of-use that include clauses against deep linking. I just wanted to throw that question out there.)

4:40 PM  
Blogger esq. said...

In my mind, since there has never been an agreement between the parties, i.e. I never clicked the magical "I agree to your T.O.S." then there is no contract. Look at the Specht case I site in my link to the prior post.

11:42 PM  
Anonymous John Ess said...

I think Kevin's gut reaction may be right - a presiding judge should hold that anyone running a website has an alternative available to them, viz., they may close their site entirely to any traffic other than bona fide "deep registered" users only, thus eliminating the potential or exposure to the deep link. Now, an argument may be made that having to put such closure in place to avoid the deep link chills the very purpose of having a website - but this argument must fail because the freedom to deep link also fulfills the purpose of the web. In a thimble: The court should rule that "if you want to be on the web and enjoy the free association it enables, then you should be prepared to experience it in every form - including the deep link - information wants to be free".

7:47 PM  

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