Aardvark
Negligence weakens publisher's case?
Copyright © 1996 to Bruce Simpson
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How can publishers protect their intellectual property on the Internet?

Well look at NBR's site for a good example of just how this can be done. It doesn't take a rocket scientist to add a simple front end to a site such that the individual content pages can't be directly accessed from other locations on the web. NBR has set several levels of "value" on the content within its site and that which is considered most valuable is well protected from direct outside linking.

Points to NBR for solving the problem rather than complaining about the symptoms.

Legal opinion sought by Aardvark indicates that if publishers structure their site such that they can be linked to in an uncontrolled manner then this may be interpreted as an "implied acceptance" that such links will occur and weaken any case for damages brought against the linkers.

US-based lawyer Ivan Hoffman, Author and specialist in Internet Law and Electronic Rights concurrs with this perspective. In a letter to Aardvark, Hoffman emphasizes that his opinions relate only to US Law but he also highlights the likelyhood of an "implied acceptance".

An analogy to this is that an insurance company is unlikely to pay out on a claim if you leave a valuable item unprotected or unguarded for any length of time in a public place. There is a burden of responsibility on the owner of the property to take "reasonable care" to protect their own property, be it physical or intellectual.

Indeed, one conditions of receiving continued protection for intellectual property under the trademark laws is that the trademark holder actively protects their own interests through vigilance against unauthorised use.

Now the sites in question will have to weigh up the value of protecting their content against the loss of traffic that is almost always associated with manditory registration or the restriction of links.

Perhaps the solution is really in the hands of the publishers.. It may be easier to take "reasonable care" than to argue the case in a court of law.


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