Thursday, June 23, 2005

Allaannonser versus Blocket

There is an interesting case of digital law emerging in Sweden. The marketplace website which managed an impressive 1 238 000 hits in April 2005 alone is taking the makers of the search motor to court as they claim that the allaannonser search motor prevents those that pay for advertising on the from being effective. Furthermore the search motor searches 25 such Swedish sites and those that advertise on less known sites gain the vast audience that promises with its huge readership. states there is a parasitic relationship created through the portal access gained.

I see this as a boundary dispute in cyberspace. If one cannot build a search motor that trawls through the whole of the World Wide Web then we are seeing an enclosure of what should be common space. There is no reproduction or mirroring involved here, just linking. A website which provides a service can fully expect that service to be undermined with an improvement in technology. Just as Netscape died a death by neglect. Sweden currently has not legislation or precedent in linking and property law. Looking at the United states situation, linking, according to The Richmond Journal of Law and Technology (1997) (attributed and quoted under Fair Use):

{8} In addition to understanding the distinction between different types of links that might be implemented in a given WWW page, it is important to understand some other interesting technical characteristics of the WWW. First, HTML documents are strictly limited to plain (ASCII) text. They do not contain images, sounds or other non-textual elements. In order for an image to be displayed concurrently with the document, a link to the image element (either local or remote) is necessary. Even somewhat simple web pages, then, might contain a large number of links to elements that make up the page's formatting.

{9} Second, links only identify the location of a target element, such as an HTML document or an image, and are not the element themselves. Embedding a link in an HTML document is not the same as actually placing the element in the document. Third, it is the user's browser that interprets the HTML instruction identified by the link. So, when the browser encounters a link, it initiates the network connection to the referenced element, facilitates the transmission of a copy of the element to the user's computer, and then processes the element so that it can be appropriately displayed (or, in the case of an audio file, heard).

This is pre-The Digital Millennium Copyright Act of 1998, which states somewhat less ambiguously:

Limitation for Information Location Tools Section 512(d) relates to hyperlinks, online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if the following conditions are met:

! The provider must not have the requisite level of knowledge that the
material is infringing. The knowledge standard is the same as under the
limitation for information residing on systems or networks.

! If the provider has the right and ability to control the infringing activity,
the provider must not receive a financial benefit directly attributable to
the activity.

! Upon receiving a notification of claimed infringement, the provider
must expeditiously take down or block access to the material.

It will be interesting to see how the Swedes decide. If they follow the The Digital Millennium Copyright Act of 1998, which is most likely then is sunk. The outcome of this case could be of particular influence to the cyberscape emanating out of presently fairly open Sweden.

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