"Permission." As soon as she mentioned that, I assumed that my friend's company, a stalwart Fortune 500, needed a basic introduction to the Web. Back then, it was very probable that a company such as hers just didn't get it yet. So I explained that the World Wide Web exists as a network of links, page to page and site to site, giving the user a seamless experience between one person's content and another's. The Web is such an effective communications device, I explained, because it's built without permission.
In fact, I preached, had developers been forced to obtain permission before linking, the Web would never have grown into the incredible tool that it is. It's successful because it's not built by lawyers, but by people trying to add value by pointing users toward interesting things. So, the sermon concluded, you don't need a linking agreement. That's not the way the Web works.
Please draft it anyway, she asked, we're very cautious.
License to Link
For years, the conventional legal wisdom on linking has been pretty much what I told to my friend years ago: Absent special circumstances, individuals and companies are free to link to whomever they want, to whatever page they want, with or without permission.
Don't get me wrong, there are some notable exceptions to this rule, such as when the linking company, intentionally or accidentally, leads users to believe that another business' content is really its own.
A lot of these cases arise when third-party content is presented inside the referring site's frame, complete with the referring site's URL, corporate logos, branding, and even its advertising. In these cases, the content on the other side of the link—a news story, a service, or an opportunity to buy something—is presented without crediting the linked party, leading to misunderstandings about who created what.
The cases have pretty much shaken out the way you might expect. Linking that looks like information sharing, recommendation, or commentary is generally OK. Linking that looks like a misappropriation or deceptive presentation of someone else's content is generally not OK. Users benefit either way. Linking is encouraged and allowed, until it becomes deceptive and confuses users.
Historically, you haven't needed permission to link to anything, unless you were approaching the edge of deception or misappropriation. A very small minority of the more cautious companies, like my friend's, may have had linking agreements in place with every site to which they sent users, but that was probably rare. The lack of friction in building the Web is certainly one of the reasons it has prospered. But there's a new problem that could change some of these rules.
A number of companies are investing enormous amounts of money to create streaming media and other forms of rich content. The costs of creating content can be huge, and the costs of hosting and serving rich media are orders of magnitude higher than hosting and serving a static HTML page. The enormity of the costs involved in creating content is certainly one reason why many online content creators have shut their doors in recent months.
So when someone links to this rich media, it may have consequences for the content creator, especially on the creator's revenue model.
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There's no better explanation of the problem than what has been detailed in a recent lawsuit. Last year, the House of Blues Digital filed suit against Streambox over "streamlinking" issues. Regardless of how or when the suit is resolved, the facts illustrate just the tip of a new, lurking problem.
Streambox is, among other things, a directory service for streaming media. Thousands of video and audio recordings, concerts, and events are categorized and linked through its service. While on one level, it's just a directory service—a Yahoo for streaming media, like a Broadcast.com—people who like concerts, or any form of live or recorded streaming media, are likely to have Streambox in their bookmarks.
The House of Blues, as you probably know, is the chain of restaurants and small concert stages across the country that in any given week, has scores of concert performances at its various venues. House of Blues Digital streams some of those live performances to users, live or through archives, through HOB.com.
If you want to view a House of Blues concert, you need to drill down at least three pages into HOB.com. On each page in that process you'll be hit with at least one advertising impression. There's no one-click access to HOB streaming content. Wherever you are at any given time, you're always a few clicks and advertising impressions away from a second media file.
Now, that's not a knock on House of Blues. This is, after all, a business it's running, not a home page. At a time when original online content companies are about as desirable from a stockholder's point of view as asbestos manufacturers, forcing users through a series of advertising impressions in an attempt to generate revenue is understandable, if not downright commendable. If there's no way to monetize the delivery of content, then users are liable to lose that content.
While HOB.com also has the standard informational aspects of any Web site, with a listing of upcoming concerts at its venues and ticket information, the streaming content is clearly the crown jewel of HOB Digital.
Content Theft vs. Legal Link
So what's the lawsuit about? A user interested in streaming media might well decide that instead of going from site to site looking for material, she'd rather use a directory service like Streambox. At such a directory site, she could review a wider variety of audio and video choices than she could at any single company's site. And if she saw something in the Streambox directory service that she liked, she'd just click on it, and the stream would begin.
Getting a one-click stream, or close to it, from Streambox is the problem. Streambox gets the advertising impressions. It creates the user experience, and with that one click on the Streambox link, a media player opens and a stream starts to flow from the HOB.com site. House of Blues paid to produce the stream, and it's incurring the costs of hosting and serving the stream. However, it receives none of the revenue. The user has a terrific Streambox experience, all at the expense of House of Blues. Something's wrong with this picture.
Well, you might ask, isn't this covered by existing case law on deceptive linking and framing? Isn't this just a case of Streambox trying to pass off the House of Blues content as its own? The answer is a very loud no. Even before the lawsuit was filed, Streambox was exceedingly careful to properly label the streams it linked from its site. It provided the name of the host and all appropriate and necessary copyright information. There was absolutely nothing deceptive about what it was doing. Users understood exactly what the deal was: They were using a directory service to locate a specific stream that would be served from the House of Blues.
Even with the proper labeling, something seems wrong. What is it? House of Blues isn't quite sure either.
House of Blues sued Streambox on numerous causes of action, under both federal and state law: trespass, fraud, violation of privacy, conversion, theft, unjust enrichment, tortious interference with contract, copyright infringement, trademark infringement, passing off, trademark dilution, unfair competition, and unfair business practices. (For more information see: www.lextext.com/streambox.pdf).
If the case proceeds to trial, one of those charges may stick.
Site Trespassing
I say that not because I've done an exhaustive analysis of the legal issues as they apply to these specific facts, but because something about what Streambox is doing just doesn't seem right. And the law does a pretty good job of dispensing justice and doing what's equitable.
While the law sometimes has to bend and twist to accommodate the Internet, it's a fairly adaptable creature. In fact, companies like the House of Blues are resurrecting centuries-old torts to accommodate these new concepts. The lead cause of action in the House of Blues litigation isn't copyright infringement or one of the other legal issues that end users now know intimately from following the Napster case, but something called "trespass to chattels." A "chattel" is a kind of moveable property, like a wagon or a cow, or in this case a Web server and a media file.
"Trespass to chattels" was a tort designed to allow someone to recover damages when a piece of personal property was used without the owner's permission. Even if the use was for a short amount of time and didn't cause any lasting injury, trespass to chattels recognized that there may be damages flowing from this unauthorized use. It's just about permission.
At the heart of these cases, someone has simply linked to a file without permission.
What's Fair
But that happens all the time, right? Spiders from search engines comb the Web every day looking for new content to index. Users click on search engine results and are transported straight to the content they want. What's different about those instances?
House of Blues would say the difference is that the Streambox spiders ignore the robots.txt file. According to the complaint, House of Blues has clearly indicated in its robots.txt file what should be indexed and what shouldn't. In the robots.txt file, the URLs of the streams are off-limits. In essence, Streambox has ignored what House of Blues characterizes as a type of "no trespassing" sign on its Web server.
But the real equitable difference between search engine results and streamlinking is that the costs involved are different. That's not a legal distinction; it's just a gut reaction about fairness. At a time when most content companies are failing, I'm sympathetic to the mechanisms companies are using to build revenue.
And in the example set by this real world lawsuit, Streambox is essentially cannibalizing its market. It's moving an advertising revenue stream from the content creator to the directory service. If you want to continue to see new content, that's not a good long-term strategy. Somewhere in all of those causes of action, House of Blues may find redress.
Trust the Code, Not the Law
At the end of the day, the solution for House of Blues and similarly situated content companies may not lie in the courts, but in the code.
New law that would require companies to enter into linking agreements with those they wanted to target would cause more problems than it would solve. Imagine the level of complexity if every link on the Internet had to be backed by a signed contract.
Code, however, is a better solution, and would leave the issue of whether to allow linking solely to the discretion of the content creator. House of Blues chose to present its streams from static links. There are good reasons for making that choice, not the least of which is that it allows easy linking. Under the appropriate circumstances, making it easy to link to your content can be a good thing, increasing traffic and bringing in new users.
In this case, however, House of Blues' site design allows its best content to be selectively presented by a directory service, bypassing the entry pages and the advertising impressions. Again, something about this access seems wrong. But a solution to that problem is within House of Blues' control. Yes, it will involve some recoding on the site. It will require links to streams to be generated on the fly or have session-specific permissions set through a gateway page. But it's House of Blues' decision.
The law also might provide a solution for House of Blues. The law is an adaptable animal. Trespass to chattels? It might work, but while it might be a victory for one company, it's not the best solution for the Internet.
Bret is an intellectual property and Internet attorney, and a partner with Hancock, Rothert & Bunshoft. You can reach him at [email protected].
