Category Archives: Tech

SCC Rules on Performance Royalties for Music in Video Games

I’ve been a bit behind on newsletters and blog posts lately, so although this may not be the most timely discussion, I still think its interesting. Last month the Supreme Court of Canada came down with a few quite notable copyright decisions. Among them was a decision to not require video game publishers to pay tariffs to SOCAN on music used by publishers in video games distributed digitally.

The Players: 

The Entertainment Software Association (and its Canadian cousin) (“ESA“) an entity representing a coalition of video game publishers and distributors who enable customers to download video games from the Internet.

- and -

The Society of Composers, Authors and Music Publishers of Canada (“SOCAN“) an entity which administers the right to “communicate” musical works on behalf of copyright owners by managing who uses music and how it is used, as well as by collecting tariffs on behalf of artists for the use and/or distribution of music (i.e. by online sale, through download, “brick and mortar”, etc.).

The Problem:

SOCAN applied to the Copyright Board for the imposition of a tariff on downloads of musical works via the Internet. The Copyright Board concluded that the download of a file containing a musical work was a “communication” within the meaning of the Copyright Act (the “Act“), and therefore, SOCAN artists’ are entitled to collect a tariff on games containing music when downloaded, even if publishers already paid a license fee to artists prior to distribution of the games containing such works.

The ESA appealed to the Federal Court, which upheld the decision. The ESA then appealed to the SCC…

The Decision:

The SCC held that the appeal should be allowed and a separate tariff should not apply to games digitally distributed online which contain musical works. Why, you might ask? Well, the majority argued that there is no real difference btween buying a copy off the shelf and downloading a copy of the game online. When you buy it at your nearest game dealer, you don’t pay a separate tariff. So, why should the artist be able to essentially “double dip” when the distribution is done online? In fact, the majority thought that to do so would “impose a gratuitous cost for the use of more efficient, Internet-based technologies.” In particular, the majority held that the Copyright Board’s mistake lay in the fact that they defined a download as a “communication” thus bringing the action within the wording of relevant sections of the Act. Rather, the majority interpreted a “download” as “an additional, more efficient way to deliver copies of the games to customers. The downloaded copy is identical to copies purchased in stores or shipped to customers by mail, and the game publishers already pay copyright owners reproduction royalties for all of these copying activities.”

Talk amongst yourselves:

Although the decision makes some sense to some (and no sense to others) I was left with a question regarding streaming of games. As we know, streaming of games from the “cloud” is a new and definitely viable method of game distribution. The key difference, as I’ve discussed before, is that a download allows the transmission of a durable copy whereas a stream is a temporary transmission with little to no fixed imprint following the cessation of the stream.

Two key phrases in the decision led me to thinking about this:

  • First, the reference to s. 3(1) of the Act at para. 5, which states that , “the principle of technological neutrality…describes a right to produce or reproduce a work ‘in any material form whatever’”
  • Second, the majority’s statement that “The Internet is a technological taxi that delivers a durable copy of the same work to the end user.”

These two statements are not to be taken independently, and surely, the second ought to be read in light of the first. With regards to streaming, it seems evident that “technological neutrality” would treat streaming much the same way as downloading, and in this case in particular, also deny music creators additional royalties on music which is communicated via stream as well as download. In all likelihood, if the question were to be put to the court re: streaming of games and music royalties, the court would end up with the same outcome based on its understanding of “communicate” as well as that the Act allows one with the right to do so, to reproduce a work in any material form whatever.” 

Moving on. The second statement, in light of the first, would, on the face of it, be taken to mean the same thing: the streamed copy of the game is a durable copy which constitutes a communication inclusive of music to which initial payments were made, and to which additional royalties won’t apply.

Read independently, however, an issue arises: a streamed copy of anything is not, in its essence, a “durable copy”. It’s existence is fleeting. Although certain components necessary to run the game on a user’s system will reside on said system permanently, the gameplay itself (including the music forming an underlying element of the game) do not sit anywhere before, during or after the streaming session, except for the cloud from which the game is streamed. Notwithstanding the fact that, although not “durable”, a streamed video game is a more or less material reproduction (all the necessary elements to interact with the game and use it as intended are there) the durability of such a reproduction may, at least somewhat, the “materiality” of such a reproduction and, therefore, question the validity of technological neutrality in such circumstances.

Then again, “neutral” is just that – neutral. The law as intended ought to treat streaming as it does any other technologically reproduced copy of a copyrighted work.

All in all, I have no answer. I do believe, though, that the historical copyright decisions in relation to stage performance, particularly the debates surrounding the passing nature of a performance’s existence, will influence how we look at streamed content and copyright in the future.

You can read the decision in its entirety here.

This discussion is not to be taken as legal advice. Please contact a lawyer before making any decisions which require legal advice.


#SXSW (or, How I Learned to Stop Worrying and Love Twitter)

I just got back from a fantastic trip to Austin, Texas (the home of the South by Southwest Conference on interactive media, film and music and also the home of weird). Although I went down with some colleagues to focus on selecting content for the Open Roof Festival‘s upcoming 2012 season, I also learned quite a bit and came away with a few things on my mind – both in terms of entertainment as well as the future of digital media, social networking and how content is going to be developed, distributed and shared going forward. In particular, I walked away from the Festival with three things on my mind, and although none of them are new concepts or are mindblowing ideas, a renewed focus on them gave me some insights I thought are worth sharing. In no particular order they are:

Convergence

It’s a word we love using in the entertainment/digital media world. “Convergence”. I must have used it about ten times per day when meeting various people in film, gaming, digital media, distribution and a host of other industries while at SXSW. But what does it even mean? My take on it is this: media is moving toward one focal point of distribution – through sharing and the merging of platforms – and there is almost nothing we can do about it. Not that it’s a bad thing. But, it’s important to note that the traditional models of watching a movie, listening to music, playing a video game, and so on, are all likely going to eventually come at us in one form and through one platform – digitally and through the internet, respectively. For example, I was speaking with someone at SXSW who is the business of acquiring content for a large film distribution company, and her role is to simply ensure that the VOD (Video on Demand) library is full. How do we get VOD? Ultimately, through the internet and in the form of digital media. This was not the case long ago. Other examples include the sourcing of music, not by CD or vinyl (gasp!), but rather, by a stream from the “cloud” where our digital music files are stored. Does this mean that convergence means Apple Inc. will essentially manage and sell to us every piece of media? Maybe. But the important thing to note is that, as we move forward, and as technology evolves, law will have to evolve to acknowledge the fact that the traditional lines separating modes of distribution and forms of content are blurring, if not vanishing altogether.

Location-Based Apps are the Future

SXSW is the home of the launch of many apps (most notably, Twitter) and the interactive element of the conference dwarfs the film and music side of things. Over the course of 4 short days, I was bombarded with trial downloads, advertisements, on-site activations, etc., for a wide range of apps, almost all of which focused on letting people know where I was, what I was doing and why they should be doing the same things. Many of these were only available in the US, however, some of them are coming to Canada shortly. The rise of location-based apps has a lot to do with the advent of GPS enabled mobile phones as well as the ease with which the SDK (software development kits) for the iOS and Android systems are obtained and used. Combine that with the fact that there is a tendency in our generation to let everyone know what we are doing, eating, saying, thinking and looking at all the time, and voila – you have the inspiration for developing an almost infinite supply of apps (many of which are redundant and/or useless) that will tell people what you are doing and where you are at any given moment. Some focus on people within your immediate range, others only on people you know. I will admit that this was particularly useful at SXSW – however, be prepared to see this sort of technology being implemented in other apps which, to date, have not necessarily sent out an automatic signal to others letting you know where you are. “Automatic” you say? That leads me to the final point of this post….

Instantaneous Communication

There was no point at which, over the course of 4 days, I did not know exactly what was happening at any second of the day. Largely due to Twitter and the fact that WiFi was everywhere (including on the bodies of homeless people) I was able, at any minute, to search or be updated on the following: what movies were playing; how long the lines were; what the weather was; who was or was not speaking; the best or worst events of the hour; what parties to go to; what parties sucked; which of my friends were around me; what to eat; who to follow on Twitter; who to ban on Twitter; etc., etc., etc. (you get the point). Some of you might be thinking, “Jordan, you are clearly living in the stone age – how have you not realized the power of this type of communication until now?” To them I respond – “I don’t know.” But I’d also say this: the speed at which we are now communicating as a result of the advent of mobile technology and the ease with which we can obtain important information presents a spectre of awe and fear. The usefulness of these types of communications is staggering – but also puts an incredible amount of pressure on people to do things quickly, to release information automatically, and to have no patience for process. Combined with the growth of applications showing where you are at all times and you have this potential outcome (also not news): you may never have any privacy again.

Conclusion

These are big issues, ones which I promise not to overindulge in or bore you with. But, being at SXSW, seeing what was happening and hearing what people had to say really brought these concepts to the fore and ones which I thought were worth sharing. The lesson? Go to SXSW – I promise, you’ll learn something.

Streaming vs. Downloading – what’s the difference (legally speaking)?

It’s been a busy first quarter so far. As many of you know, earlier this year, the famed website Megaupload went down, unleashing a fury of angry film and music downloaders (as well as advertisers). The central theme, of course, was access to on-demand content, or following the shutdown, a lack thereof. Most users of the Megaupload service (and others like it – let’s call them “fileshare servers”) accessed content on fileshare servers through one of two methods: download and stream. To most of us, these terms are often thought of as synonymous – the process doesn’t matter, so long as we get our content when we want it. However, there is a vast difference, both in terms of technology and legal ramifications, which I’ll summarize briefly here. I’m going to explain both in terms of the shower and the bathtub.

Stream: the Shower

As the name suggests, to “stream” means to “flow like water” [definition mine]. Imagine you have a reservoir and that reservoir is full of water. You open a spigot and through the pipes flow the information. When you close the spigot the flow pauses. But, you can always recommence that flow. Now let’s add in one more variable – you are in the shower. The water that passes through the pipes and flows over your head gets used of course, but we don’t hold onto it. It, instead, goes over us and into the drain. Now, replace the water with data and the reservoir with the fileshare server. The data flows through the pipes to our consumption devices from the fileshare server, and on the basis of our own control of the spigot. We can start, stop, rewind, and so on. However, as the data passes through our devices in the way water flows over our heads in the shower, the data is never held onto, in the same way the water goes down the drain. We aren’t filling a bathtub here. Therefore, we never actually keep any of the data (or content embodied therein).

At this point you might be saying, “So what Jordan? Download, stream – who cares? I still get to watch my movie.” Well, that might be true, but here’s the key difference from a legal perspective: in our simplistic model, when you stream, you don’t keep any data. And if you aren’t keeping any data, then you can’t redistribute that data. This therefore means that you only use the data for one simple purpose: consumption. From a content distributor’s perspective, this avoids some of the necessity of ensuring that you, the user, doesn’t redistribute the content or data in illegitimate ways. It simplifies the licensing requirements involved in providing content on a streaming basis. A license to stream, on the most simple terms, is simply a license to use the data as it passes through, with no right to sublicense, redistribute, store, amend, duplicate, change, or so on. You simply take it as it comes to you, much in the same way you take the water from the shower as it falls out of the spout.

Download: the Bathtub

When you download, think of a bathtub instead of a shower. As the water comes out of the spout, we have the same control of start and stop as we do when in the shower, correct? We can pause our downloads, we can stop them altogether. However, much like a bath, a download isn’t really useful to us until it’s full. Therefore, to make effective use of a bathtub and a download we have to “plug the drain”. We must hold onto it and use it for an extended period of time. So, with data, our devices don’t serve as pass through entities, but rather, as storage containeres in much the same way a bathtub works for water.

This has a significant legal consequence. Namely, since you hold onto data instead of letting it pass through a device, you acquire a different set of de facto rights in the data. For example, if you download an entire film onto your computer (legally, of course), you enter into a license agreement with the distributor of that content. That license is going to let you consume the content, much in the same way a streaming license will. However, a download license will, by the very nature of downloading, specifically prohibit you from doing certain things with that content, namely, making available for redistribution through copying or subsequent streaming or making available for download through third party systems, modifying, amending, and so on. The subtle difference of “keeping” data fundamentally changes the way in which the data is viewed through a legal lens.

Conclusion

This is a simple analysis of the difference between streaming and downloading, and by no means does it exhaust many of contingencies (both technological and legal) which are involved in such considerations. However, understanding the differences on a high level offers a glimpse into the reasoning behind content creators’ frustration with illegal streaming services, the ability of users to download content for their own redistribution, and the lengthy agreements we enter into with Netflix or iTunes when streaming or downloading content.
*This article is for informational purposes only and by no means constitutes legal advice*

 

Video Games: A Woman’s World?

Lately, I’ve been seeing more and more stats coming out on the prevalence in women dominating the video game market.

That’s interesting, considering that, historically, console games and most other video games have not only targeted youth, but more importantly, targeted males. This is obvious in “shoot em up” games with almost entirely male characters engaging in random violent acts against unknowable terrorist or zombies. Not so obvious are the Mario Bros. and Sonic the Hedgehogs of the world. Again, in those cases, male characters attempting to save a princess or collect coins, respectively.

So, what’s with this whole “women in video games” thing?

I mentioned in a previous post that the social gaming market is now dominated by women above 40. But wait, there’s more!

This week, the Globe and Mail posted an article discussing this topic in detail. The Canadian video game market is worth $1.7 billion. The Entertainment Software Association of Canada estimates that almost 40% of the 59% of Canadians who play video games are women. With women forming an increasingly large part of that market, the article posits that women are now taking more ownership of games and offering more input as to how they are created and marketed.

Why is this happening? To know, we first look at what women are playing: puzzles, card games, word games, all played on hand held devices and almost all of which are most often deemed “casual games”. Those games (such as Zynga’s Farmville and Castleville, among others) focus on, what the Globe and Mail called “traditional female social skills as negotiation, persuasion and even manipulation, and offer the ability to trade secrets, nurture relationships or accumulate glamorous stuff…”

With that in mind, we are already seeing the creation of a subdivision of what was largely a male dominated industry to date. Organizations such as Intenium.de are marketing themselves with slogans such as “For a Billion Female Gamers”. Silicon Sisters, a female centric game company, has recently been established on the west coast.

And it’s not just in the game design sector either. Absolutist, an IT company focused on porting casual games between platforms, claims, “women’s curiosity is the best weapon while testing games. No girl can resist the temptation of clicking every button! As a result, no bug is left unnoticed.”

Clearly, women are making a significant impact on the gaming industry – both in design and administration, but also in marketing and demand. It will be interesting (and exciting) to see how the industry will continue to change going forward – but in any event, it’s surely to be for the better.

 

Video Games: A Woman's World?

Lately, I’ve been seeing more and more stats coming out on the prevalence in women dominating the video game market.

That’s interesting, considering that, historically, console games and most other video games have not only targeted youth, but more importantly, targeted males. This is obvious in “shoot em up” games with almost entirely male characters engaging in random violent acts against unknowable terrorist or zombies. Not so obvious are the Mario Bros. and Sonic the Hedgehogs of the world. Again, in those cases, male characters attempting to save a princess or collect coins, respectively.

So, what’s with this whole “women in video games” thing?

I mentioned in a previous post that the social gaming market is now dominated by women above 40. But wait, there’s more!

This week, the Globe and Mail posted an article discussing this topic in detail. The Canadian video game market is worth $1.7 billion. The Entertainment Software Association of Canada estimates that almost 40% of the 59% of Canadians who play video games are women. With women forming an increasingly large part of that market, the article posits that women are now taking more ownership of games and offering more input as to how they are created and marketed.

Why is this happening? To know, we first look at what women are playing: puzzles, card games, word games, all played on hand held devices and almost all of which are most often deemed “casual games”. Those games (such as Zynga’s Farmville and Castleville, among others) focus on, what the Globe and Mail called “traditional female social skills as negotiation, persuasion and even manipulation, and offer the ability to trade secrets, nurture relationships or accumulate glamorous stuff…”

With that in mind, we are already seeing the creation of a subdivision of what was largely a male dominated industry to date. Organizations such as Intenium.de are marketing themselves with slogans such as “For a Billion Female Gamers”. Silicon Sisters, a female centric game company, has recently been established on the west coast.

And it’s not just in the game design sector either. Absolutist, an IT company focused on porting casual games between platforms, claims, “women’s curiosity is the best weapon while testing games. No girl can resist the temptation of clicking every button! As a result, no bug is left unnoticed.”

Clearly, women are making a significant impact on the gaming industry – both in design and administration, but also in marketing and demand. It will be interesting (and exciting) to see how the industry will continue to change going forward – but in any event, it’s surely to be for the better.

 

Social Networking and Casual Games: What’s happening?

The Casual Games Association came out with it’s 2012 Casual Games Sector Report earlier this month. With an estimated audience of 77.9 million casual gamers in 2012, clearly casual and social gaming is a trend that is not going away.

So what is a casual or social game? Think: Bejewelled or Solitaire. Think: Farmville on Facebook. These are the sorts of games that are on a rampant rise. Easily accessible from mobile platforms and within browsers, often completed in a matter of days, easy to turn on or off on a whim, and basically great time wasters, casual games provide a simple, technologically uncomplicated and widely accessible way for youth and adults alike to game.

So, with those almost 80 million people in the US alone to be using social gaming this year, who are the major players in the casual game world, what are people spending, and how much does this industry stand to gain?

Some interesting factoids (taken from the Casual Games Association 2012 report):

  • Almost all social network games are built on a “freemium” model, meaning that the game is offered or free while charging a premium for more advanced features, functionality or related products or services.
  • While the average console game player (i.e. PS3, XBox 360) is a 37 year old male, the average social network game player is a 40 year old female.
  • social games are 60% monetized by virtual good purchases, with 20% revenue generated in advertising and the other 20% generated in in game offers.
  • Most paying social gamers spend between $1 and $5 per game per month.
  • The top ten content providers reach more than half of the total gaming audience on Facebook, Zynga leading the pack with over 46 million daily active users. Electronic Arts comes in at 2nd place with just over 12 million users – a drastic decrease from Zynga’s share.
  • Estimated worldwide revenues in social network games for 2012 is $6.20 billion (yes, billion). For 2014? $8.64 billion.

So, even with Zynga’s disappointing IPO results, you can be sure that social network and casual gaming is not going anywhere for a long time.

You can find out more about Casual Games Association 2012 report here.

Social Networking and Casual Games: What's happening?

The Casual Games Association came out with it’s 2012 Casual Games Sector Report earlier this month. With an estimated audience of 77.9 million casual gamers in 2012, clearly casual and social gaming is a trend that is not going away.

So what is a casual or social game? Think: Bejewelled or Solitaire. Think: Farmville on Facebook. These are the sorts of games that are on a rampant rise. Easily accessible from mobile platforms and within browsers, often completed in a matter of days, easy to turn on or off on a whim, and basically great time wasters, casual games provide a simple, technologically uncomplicated and widely accessible way for youth and adults alike to game.

So, with those almost 80 million people in the US alone to be using social gaming this year, who are the major players in the casual game world, what are people spending, and how much does this industry stand to gain?

Some interesting factoids (taken from the Casual Games Association 2012 report):

  • Almost all social network games are built on a “freemium” model, meaning that the game is offered or free while charging a premium for more advanced features, functionality or related products or services.
  • While the average console game player (i.e. PS3, XBox 360) is a 37 year old male, the average social network game player is a 40 year old female.
  • social games are 60% monetized by virtual good purchases, with 20% revenue generated in advertising and the other 20% generated in in game offers.
  • Most paying social gamers spend between $1 and $5 per game per month.
  • The top ten content providers reach more than half of the total gaming audience on Facebook, Zynga leading the pack with over 46 million daily active users. Electronic Arts comes in at 2nd place with just over 12 million users – a drastic decrease from Zynga’s share.
  • Estimated worldwide revenues in social network games for 2012 is $6.20 billion (yes, billion). For 2014? $8.64 billion.

So, even with Zynga’s disappointing IPO results, you can be sure that social network and casual gaming is not going anywhere for a long time.

You can find out more about Casual Games Association 2012 report here.

The EULA: What it Does, How it Works (and, what does EULA even mean?)

With the holiday season approaching, and the ensuing line ups for the latest and greatest video games to hit the market, I thought it would be a good time to discuss the End User License Agreement.

If you are a gamer (and hopefully don’t look like this guy), you know that as soon as you open up that shiny new plastic packaging, take a look at your soon-to-be-conquered game, and slide it into your gaming console, you are confronted with a “Do you agree?” prompt. Sound familiar? It should be – end user license agreements, or “EULAs”, are standard fare in video games and software, and pretty much anything existing else you might be able to digitally copy.

What is the EULA?

Simply put, a EULA is a software license agreement. It is a grant of permission from the producer, publisher and/or distributor of a piece of software to you to do certain things, and more generally, governs your use of the piece of software being licensed to you, the end user. It also prevents the user from doing certain things. Hence, it is not ownership – rather, it lets you do something with that game for a certain period of time, just as a driver’s license allows you to drive until you hit a certain age or break a rule which leads to revocation of the license.

You might ask yourself here, “Why am I being licensed the use of the software? Don’t I own it by virtue of the fact that I bought the disk at a retail store, or downloaded a copy onto my computer from a legitimate online source?” Simply put, the answer is no.

When you acquire a copy of a piece of software, the game publisher is only letting you use the game in the form you’ve acquired it. Without getting too deep into a discussion of intellectual property here, an end user technically never owns the source or object code which forms the basis of the game. And without owning that, you can’t actually own what the software is made of, which is a sequence of bits and bytes, 1s and 0s. Although this is a greatly oversimplified analysis, it illustrates the point that the software, on its own, does not actually exist in the form in which an end user acquires it. Therefore, the bundle of rights transferred through the purchase of a software disk is not identical to the bundle of rights existing in in the actual software as it exists at source.

But I digress.

What does a EULA let you do?

A EULA allows one to basically use the software in accordance with the rules stipulating what the end user is not allowed to do. So…

More importantly, what doesn’t a EULA let you do?

It is important to keep in mind, before looking at what a EULA prevents an end user from doing, that software and digital content are, by their very nature, subject to being copied, redistributed, or hacked. As such, digital content providers, creator, and software manufacturers have a very great interest in ensuring that end users are aware of what they can not do with any one piece of licensed software, and more importantly, ensure that the software manufacturer’s bottom line is reduced as little as possible as a result of piracy and other violations.

Most often, a EULA prevents you from doing the following:

  • transfer the license
  • make copies of the software
  • rent the software
  • lease the software
  • lend, sell, redistribute or sublicense the software to another user
  • decompile, reverse engineer, derive source code, modify, create a derivative work of, or otherwise repurpose the software

A EULA often includes other terms contained in licenses, such as:

  • term
  • territory
  • warranty terms (most often, software provided AS IS)
  • limitations of liability (most often, producer/publisher maintains no liability for any damage the software may cause to existing hardware)
  • governing law
  • dispute resolution methods

Note that many publishers and providers are also required to include Open Source Content licenses in their EULAs, so as to advise end users of the open source content, if any, found within and the terms under which such open source content can and can not be used.

Although this is not a full list, it is should give the user a thorough idea of what he or she should not be doing, if he or she wants to comply with the rules governing the use of the software in question, and not find him or herself in a situation where the licensing party has recourse for breach, (as was the case in Davidson & Associates, Inc. v Internet Gateway, below).

Looking to the Future

Ah yes, the future. Flying cars, virtual reality vacations, food in pill form. It’s basically going to look like this. But, there is also going to be a growing concern about how effective these EULAs are. In fact, we have already seen disputes over EULAs in the law.

In Davidson & Associates, Inc. v. Internet Gateway, the plaintiffs Davidson and Vivendi Games, operating as Blizzard Games, had established an online system whereby end users could access and play games, online, 24 hours a day. Internet Gateway had entered into a EULA with Blizzard, one of the terms of which was to prevent reverse engineering. Internet Gateway ignored this term and reverse engineered the Blizzard system online, thereby allowing it to create its own online game play system which would work in conjunction with Blizzard. Although a clear breach of the EULA, the defendants argued correctly that reverse engineering was a fair use exception under US copyright law. Nevertheless, the Court held the EULA and other terms of use contracts overrode intellectual property law because, as individual parties entering into an agreement, they were free to agree to forego exemptions provided for in intellectual property law.

As the spread of digital content increases through creation and copying, so will legal discussion of this matter. We’ll simply have to watch it unfold.

If you have any questions or concerns with regards to licensing, EULAs and your business or production, contact us.

 

***Note: this article does not constitute legal advice nor does it form a solicitor/client relationship between the reader and Jordan Nahmias.***

“Deep Linking” and Why You May not Want to Use it Anymore

A client of mine got in touch with me yesterday to ask me whether he could continue to “deep link” to another site’s service through his own. At first, I thought, “that shouldn’t be a problem”. No copyright or trademark violations, no misrepresentations, and no direct violations of the Terms of Use of the site which was being linked to.

Then I thought, “Wait a minute – there’s got to be more to this.” And, there is.

“Deep Linking” can be defined as the practice of linking to a sub-page deep within a website. Technically speaking, there is no difference between “deep linking” and using a regular hyperlink to link to another site. In fact, hypertext transfer protocol, the technology behind the entire Internet, makes no distinction between the two at all. In fact, here’s a deep link now, so you get what this means: click this NOW!

As you can see, I linked not to the Toronto Star website, but to an article on Occupy Wall Street (the validity of which, I will not debate here) buried deep within the network of links forming the entire site map of the TheStar.com.

Anyway, as deep linking continues to proliferate on the Internet, there has been rising debate as to the legality of one’s deep linking to the content of another.

Case Law

Although there have been no Canadian cases on the matter, the most recent, and what would seem the most persuasive to Canadian law, is the case of Ticketmaster v. Microsoft, (United States District Court for the Central District of California, Civil Action Number 97-3055DPP).

Ticketmaster brought an action to preclude Microsoft’s Tickets.com website deep link to individual concert listings on the Ticketmaster.com site. Instead, Ticketmaster wanted Tickets.com to link to the Ticketmaster.com home page, presumably for reasons of ad revenue and users being essentially forced to go through the normal steps to get to a concert or ticket listing embedded within Ticketmaster.com.

In particularly, Ticketmaster claimed that Microsoft, through its operation of Tickets.com and the deep linking to listings on Ticketmaster.com, was violating Ticketmaster’s copyright and/or trademark rights, by allowing a site to use the informational pages of Ticketmaster for its own benefit. Ticketmaster also claimed that deep linking, in this case, was a form of trespass as it consisted of going into someone’s property without consent. Finally, Ticketmaster claimed that the deep linking was a violation of the Terms of Use on the Ticketmaster.com website.

The court found that there was no violation of the trademark or copyright of Ticketmaster through the deep linking by Tickets.com. In fact, since there was no copying of images or content, there could be no copyright violation. And, since Tickets.com was not “passing itself off” as Ticketmaster, nor using the trademark without consent, then there was no risk of confusion by a user that Tickets.com was, in fact, Ticketmaster.com.

As for the question of trespass, the court also found that the deep linking to the site would not constitute a trespass. Had the deep link caused damage to the site, or slowed it down to a degree as to interfere with the business of the site, then it would have been arguable such linking was a trespass onto the property of Ticketmaster (as was suggested by the court in the later case, EBay v. Bidder’s Edge Inc. (100 F. Supp. 2d 1058 (N.D. Cal., May 24, 2000))). However, since this was not the case, then the court in Ticketmaster held there was no trespass.

So, should you deep link?

Based on the Ticketmaster decision, although there is a steep hill to climb for plaintiffs to prove trespass, so long as one does not violate the copyright or trademark of another site through a deep link, a deep link should be considered legal.

The exception to this, and one of which I believe most site hosts/creators should be aware, is where a site’s Terms of Use specifically prohibits deep linking or linking generally to the site without the site’s consent. And, as Terms of Use become increasingly binding in Canada, and as the use of deep linking continues to expand and evolve with the Internet, restrictions on deep linking are only likely to increase. In such cases, it is advisable at minimum to contact the linked-to site’s host or webmaster to ensure consent is granted. Otherwise, one runs the risk of receiving complaints and/or cease and desist letters for violation of Terms of Use – and that’s no fun at all.

 

***Note: this article does not constitute legal advice nor does it form a solicitor/client relationship between the reader and Jordan Nahmias.***

"Deep Linking" and Why You May not Want to Use it Anymore

A client of mine got in touch with me yesterday to ask me whether he could continue to “deep link” to another site’s service through his own. At first, I thought, “that shouldn’t be a problem”. No copyright or trademark violations, no misrepresentations, and no direct violations of the Terms of Use of the site which was being linked to.

Then I thought, “Wait a minute – there’s got to be more to this.” And, there is.

“Deep Linking” can be defined as the practice of linking to a sub-page deep within a website. Technically speaking, there is no difference between “deep linking” and using a regular hyperlink to link to another site. In fact, hypertext transfer protocol, the technology behind the entire Internet, makes no distinction between the two at all. In fact, here’s a deep link now, so you get what this means: click this NOW!

As you can see, I linked not to the Toronto Star website, but to an article on Occupy Wall Street (the validity of which, I will not debate here) buried deep within the network of links forming the entire site map of the TheStar.com.

Anyway, as deep linking continues to proliferate on the Internet, there has been rising debate as to the legality of one’s deep linking to the content of another.

Case Law

Although there have been no Canadian cases on the matter, the most recent, and what would seem the most persuasive to Canadian law, is the case of Ticketmaster v. Microsoft, (United States District Court for the Central District of California, Civil Action Number 97-3055DPP).

Ticketmaster brought an action to preclude Microsoft’s Tickets.com website deep link to individual concert listings on the Ticketmaster.com site. Instead, Ticketmaster wanted Tickets.com to link to the Ticketmaster.com home page, presumably for reasons of ad revenue and users being essentially forced to go through the normal steps to get to a concert or ticket listing embedded within Ticketmaster.com.

In particularly, Ticketmaster claimed that Microsoft, through its operation of Tickets.com and the deep linking to listings on Ticketmaster.com, was violating Ticketmaster’s copyright and/or trademark rights, by allowing a site to use the informational pages of Ticketmaster for its own benefit. Ticketmaster also claimed that deep linking, in this case, was a form of trespass as it consisted of going into someone’s property without consent. Finally, Ticketmaster claimed that the deep linking was a violation of the Terms of Use on the Ticketmaster.com website.

The court found that there was no violation of the trademark or copyright of Ticketmaster through the deep linking by Tickets.com. In fact, since there was no copying of images or content, there could be no copyright violation. And, since Tickets.com was not “passing itself off” as Ticketmaster, nor using the trademark without consent, then there was no risk of confusion by a user that Tickets.com was, in fact, Ticketmaster.com.

As for the question of trespass, the court also found that the deep linking to the site would not constitute a trespass. Had the deep link caused damage to the site, or slowed it down to a degree as to interfere with the business of the site, then it would have been arguable such linking was a trespass onto the property of Ticketmaster (as was suggested by the court in the later case, EBay v. Bidder’s Edge Inc. (100 F. Supp. 2d 1058 (N.D. Cal., May 24, 2000))). However, since this was not the case, then the court in Ticketmaster held there was no trespass.

So, should you deep link?

Based on the Ticketmaster decision, although there is a steep hill to climb for plaintiffs to prove trespass, so long as one does not violate the copyright or trademark of another site through a deep link, a deep link should be considered legal.

The exception to this, and one of which I believe most site hosts/creators should be aware, is where a site’s Terms of Use specifically prohibits deep linking or linking generally to the site without the site’s consent. And, as Terms of Use become increasingly binding in Canada, and as the use of deep linking continues to expand and evolve with the Internet, restrictions on deep linking are only likely to increase. In such cases, it is advisable at minimum to contact the linked-to site’s host or webmaster to ensure consent is granted. Otherwise, one runs the risk of receiving complaints and/or cease and desist letters for violation of Terms of Use – and that’s no fun at all.

 

***Note: this article does not constitute legal advice nor does it form a solicitor/client relationship between the reader and Jordan Nahmias.***