Net Prophet

SAN MATEO (07/03/2000) - The elegant simplicity of the hyperlink is genius. But the humble hyperlink is under assault and taking more flak than a philandering chief executive officer.

The Motion Picture Association of America (MPAA) would like to make hyperlinking a crime. They're in a legal imbroglio with 2600, the magazine of hackers -- in both senses of that word. The struggle boils down to this: The utility DeCSS cracks the encryption on DVDs, enabling a DVD to be played without an authorized and duly licensed DVD player (it was created back when there wasn't a DVD player for Linux). DeCSS has proliferated on the Internet faster than compromising pictures of Dr. Laura.

The magazine 2600 posted DeCSS and linked to sites that made DeCSS available.

The MPAA then rode in and forced them to take down DeCSS and also wants to prevent them from linking to another site that hosts the utility. So I can tell you in conversation to go to the Lemuria dot-org site and get a copy of DeCSS.

But if I link to it (, I'm breaking the law?

Then there's EBay Inc. vs. Bidder's Edge. Bidder's Edge crawls auction sites and aggregates the results for one-stop searching. The prospect of being disintermediated scares eBay, so they sued and got an injunction to prevent the crawling. The logic of the ruling is that eBay's servers are its private property and by crawling and searching eBay, Bidder's Edge is using some of those servers' capacity -- essentially depriving eBay of its property.

What are the implications of this logic to shopping bots and search engines?

Does this mean I could sue you for that e-mail you sent -- the one that deprives me of access to a few kilobytes of my property?

Finally, the reductio ad absurdum of recent patents is British Telecom and its hyperlink patent. I don't have a problem with someone getting a patent on a particular method of "hyperlinking" (a specific set of protocols to link documents). But the whole concept of linking between documents? Isn't that tantamount to saying, "I've got the patent on referring to other information?"

But that's exactly what British Telecom is claiming. Its claim would be laughable if it weren't for the fact that the company was already granted the patent in 1989 and is sending letters to ISPs demanding licensing payments.

BT is looking to make itself a nuisance and cash in. Be just enough of a thorn in the side of the major ISPs to prompt them to capitulate and throw a little cash BT's way. In other words, BT is just another shade of cybersquatter.

Now BT has had what it calls a "hyperlink patent" for 11 years. In that time, I didn't notice BT doing anything with it. According to BT's own statements, the company uncovered the patent in a "routine search" of its intellectual property assets. Does it strike anyone else as absurd for a company to have a patent they don't even know about? The point of a patent is to protect an inventor -- who's invested considerable time and energy in coming up with an innovation -- from having that idea usurped by a rival. How did BT's patent spur innovation anyway?

Maybe we need to revise patents and add a "use it or lose it" clause. If you're granted a patent but don't do a bloody thing with it, you lose it after a year or two. It's that way with trademark law.

I'm also annoyed that the U.S. Patent and Trademark Office missed the key fact that Ted Nelson coined the term "hypertext" around 1965, about the same time Douglas Englebart was developing the NLS (oN-Line System), which he demonstrated in 1968 with working hyperlinks. In fairness, BT's patent does not use that word once, but it calls into question the method by which the Patent Office investigates prior art that might prevent a patent from being granted in the first place.

Did someone fail to mention the Web is about hyperlinking? That's what it does.

Don't want anyone linking to your information? Shut down your Web site. Don't try using the law to make the Web something other than what it is.

Link to this column and send your e-mail to Sean Dugan is senior research editor at InfoWorld.

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