TAG Teleconference

02 Dec 2010


See also: IRC Log


Noah Mendelsohn, Daniel Appelquist, Tim Berners-Lee, Ashok Malhotra, Jonathan Rees, Paul Linss, Thinh Nguyen, Yves Lafon
John Kemp
Noah Mendelsohn
Daniel Appelquist


<plinss_> Thanks, my other meeting is wrapping up

<scribe> Scribe: Dan

<scribe> ScribeNick: DKA

<timbl> Welcome, Peter!

ISSUE-25 (deepLinking-25): Legal issues relating to linking

Noah: We have a visitor - Thinh Nguyen - on the call today.
... Thinh has done work with Creative Commons relating to linking.

jar: This was spurred by a couple threads I pointed to in my email. Still a lot of questions fermenting around linking in spite of a 2003 TAG finding.
... I though it would be useful if Thihn could talk about his views on what w3c could do around linking...

<noah> 2003 Finding ""Deep Linking" in the World Wide Web" http://www.w3.org/2001/tag/doc/deeplinking-20030911

jar: related to effort to write something new on this topic, in relation to what we are seeing on various web sites right now - non-linking policies.

Thinh: Yes, I am a lawyer.
... I used to work for CC.
... CC is interested and has worked in the space of law on the Internet. Our goal has been to make things more open. Consistent with the view of W3C.
... I made some observations I'd like to share.
... this is my personal opinion, not legal advice...

<noah> I assume that, for now, we're talking about US law and precedent?

Thinh: first point : this area of deep linking has precedents going back to a number of cases. The courts have been recognizing and enforcing terms of use on the Internet.
... we've seen that in the case of creative commons licenses.

<masinter> ((T said not just US law and precedent))

Thinh: also wrt privacy policies - they are online agreements - and those are being enforced by courts. So on the question on "are these binding" I think they (increasingly) are.
... these terms of use, to the extent that they encroach on technical activities such as bots or deep linking, can break interoperability - not from a tech perspective.
... Also: not all contracts are legally enforceable. There are requirements. The user has to be aware of the contract. That is case specific.

<masinter> To what extent does offering something at a web site "http://example.com" without access control imply you're giving someone license to access that information?

Thinh: courts have said that if the user can't find the contract then it's not enforceable.
... Natural variation in online contracts.
... Also - on the terms of the contracts, there is no standard. Some are clear, some are vague.
... Thirdly - we need to think about "where" they are placed
... that relates to the architecture of a web site - e.g. do deeper pages on a web site inherit the policy of top pages?
... So - to what extent does W3C want to encourage people to use a particular standard or point of view (e.g. do not prohibit deep linking or do so only under certain technical [circumstances]).

<jar> or can 'deep linking' be prohibited only by obeying certain protocols (e.g. authentication)?

Thinh: Lastly, what w3c can do to affect these contracts is limited - since these are between the service providers and the users. Never the less, it is relevant, because courts apply industry standards when agreements are vauge.
... For instance, the default rule for copyright is that I have to obey it. The default rule for contracts is that there is none.
... When courts are faced with [ambiguity] they look to default rules. W3C could [play a role].

<jar> TN: default rules are important in court... may be supplied by technical standards

Thinh: An example could be - the default rule could be that there is no restriction on deep linking.

<noah> Since this is at the boundary between the technical and legal aspects of the Web, I wonder whether this is something the TAG should consider jointly with the AB or W3C team?

Thinh: One thing you might do: comment on technical matters that affects how these rules play out. For example you might say: "The way the URL is structured should not be viewed as relevant to whether one web page is related to another."

<masinter> I think for this to have legal impact it needs AC review & approval

Thinh: [example of home page and then many pages off of that root...]

<noah> Seems like "site metadata" might be pertinent here?

Thinh: if the w3c says that the way that a URL is structured is for convenience, but every web page is accessibile directly from the Internet and should be treated [separately] - then this could impact the legal rules [so you would have to have a notice or link to notice on every page].

<masinter> to prevent deep linking, you would have to access control any pages that you don't want linked to?

Thinh: Another idea: you could have a [standard] metadata for whether it's OK to link to a page.

<masinter> is there some connection with our web applications discussion on state? Is a link to an application state also a kind of "deep link"?

Thinh: Third idea: normative rules - rather than standards - statements where you encourage people to (e.g.) not restrict deep linking. This could be influential coming from the w3c. You could also have consensus around how the legal agreements themselves are structured. For example, a standard language around deep linking.

<noah> Tim, I'm curious. Free speech clearly relates to the freedom to publish. Less clear to me how it relates to the freedom to access, or the ability of the publisher to restrict access.

<Yves> freedom to access or freedom to point to?

<noah> Both.

<timbl> noah, later

<noah> ok

Thinh: The most important thing: since the w3c is the guardian of these standards, it [the w3c] is influential and it will be influential to courts. There are opportunities to shape the practice on the Internet. Alternatively, the practice will evolve based on what the courts decide on individual cases.

Larry: I'm more comfortable with the idea that the w3c could make a statement about default rules. I do think that procedurally the more review among the members and the community the more acceptance and precedents this would have... We might consider coming up with a TAG finding, but I wonder if we might get more leverage with greater review.
... I wouldn't imagine us wanting to do that for something that went into great depth on what the law should say. But I do think we could come up with a default rule that people would be comfortable with. Since there are widely available access control mechanisms, the default rule could be that if you don't use access control, then the default rule should be that the [resource is linkable].
... Also, we have had discussion on use of URLs in web applications - using URLs to represent state e.g. for a map. Could there be a connection between a deep link to a static resource in a web page and a link to such a [transient] resource that is not intendended to be shared...

<Zakim> noah, you wanted to ask, if the terms are on the page, then you have to retrieve it merely to find the rules. Contradiction?

Thinh: this makes me think - there's nothing about these recommendations that should make the statement that it's OK to engage in deceptive practices e.g. Phishing - it's important to not endorse that or imply an endorsement of that. Some of these terms of use are geared towards preventing that kind of practice.

Noah: During your comments, you talked about - sometimes the terms might be expressed on the Web page itself - in the content you retrieve. In practice - that could work if the terms say "you're welcome to look at this page but you can't do other things with it." There are other ways of working with the Web that don't fit that model.
... does it hold up legally to put TOS on a page that say "you shouldn't retrieve this page"?
... other concerns: can I get at the content of the page, can I share a link to it?

<timbl> (noah, have you ever seen a page with "dono reterive this page"? On it? not a common example I suspect)

<timbl> http://www.gatesfoundation.org/about/Pages/terms-of-use.aspx

Thinh: I can address: that issue came up in another case - shrinkwrap - you have to open up the shrinkwrap to read the agreement. The courts said it's OK as long as you can return the software...

<timbl> "Your Links to Our Site: You are not permitted to link or shortcut to our Site from your Web site, blog or similar application, without obtaining prior written permission from us."

Thinh: generally the courts will apply a general a general principle.
... Notice. Anything you do until you see the agreement , you can't be bounded by it because you didn't get notice.
... typical thing would be click-through agreements.
... but "defective" notices that don't provide the user reasonable notice... [courts] won't enforce. There has to be mutual understanding.
... Applying that reasoning to these cases, the same rule applies: has the user been given adequate notice and have they indicated acceptance?

<Zakim> timbl, you wanted to suggest that the right to link is free speech not copyright

Tim: On deep linking: [giving example of gates foundation terms of use]

<noah> http://www.gatesfoundation.org/about/Pages/terms-of-use.aspx

Tim: they have a document which says under "linking"...

<noah> Your Links to Our Site: You are not permitted to link or shortcut to our Site from your Web site, blog or similar application, without obtaining prior written permission from us.

Tim: so - I'm sure nobody reads that so not too many people are worried about it, but it gives them the idea that they have the right to do that.
... if I copy their page and put it on my blog, that could be an infringement of copyright.

<noah> Seems to me that the analog is not copying the content of a copyright book, it's sharing the ISBN number for it.

Tim: but if I'm referring it by a link. In general, discourse in the world requires this kind of referencing.
... E.g. the Sun news paper cannot put as a condition that you cannot refer to individual pages when you refer to a newspaper.
... When someone blogs about (e.g.) the Gates foundation, that's arguably good for them.
... If you put something on the Web, you can't deny me to right to talk about it.

<jar> the question is whether the link prohibition in the TOU has any force (user knows & has a chance to decline, etc)

Tim: Or we would need to stop using links. They don't have the ability to limit the ability to refer to them - it's something inherent in free speech.

Thinh: I do believe there is a 1st amendment issue here.
... Fair use doesn't apply to contracts though.
... I agree that there are 1st amendment issues here. Using articles of culture in speech is of vital interest.

<Yves> that kind of statement is also seen in other countries (like France), so US 1st amendment is not applying there.

BTW freedom of speech also enshrined in the universal declaration of human rights: http://www.un.org/en/documents/udhr/index.shtml

<Zakim> noah, you wanted to talk about non-US law

Thinh: My proposal: nobody is thinking about the bigger picture. That argument hasn't been made. Courts might not understand it. If the w3c took a position that could inform the legal [discourse]...

Noah: Thinh - a lot of those examples relate to the U.S. law - e.g. the 1st amendment - I think we believe the Web is a system where you can't tell by looking at the URI whose law might apply to it. The Web is an international system. Do you have comments on that?

<masinter> the W3C is more likely to be listened to, and the arguments more likely to be accepted globally, than if we were to get into copyright, free speech, etc. Not that W3C shouldn't say things in those areas, but we'll get more leverage

Thinh: It does complicate it. i am a US based lawyer so I am looking at it from a US perspective. In Europe they have a different legal system - a civil law system that tries to cover every situation. There is national legislation that affects this. Europeans are more likely to be concerned about privacy issues and moral rights. Other countries vary.
... on the Internet, more and more countries are putting geographical barriers on the Internet.

<Zakim> masinter, you wanted to argue for us to focus on "default rule" statement, since it's much more likely that we can make progress on that, and ask why the previous TAG finding isn't

Larry: I agree that there is a broad range of areas where w3c could say something. But if we want to have an impact, focusing on the narrow default rule case could have leverage.
... since there is already a TAG finding on the issue, why isn't that enough? Does it not say it strongly enough? Is the message too diffuse? Does it not say the right things?

<jar> review?

<noah> "The conclusion is that any attempt to forbid the practice of deep linking is based on a misunderstanding of the technology, and threatens to undermine the functioning of the Web as a whole. "

Noah: There is a conclusion in the intro to our finding which is pretty broad.

<masinter> that doesn't really clearly establish a "default rule", though

<jar> The finding never went rec track. Didn't get explicit W3C consensus.

<masinter> maybe try to get a rec track document on "default rule" specifically, based on TAG finding etc.?

Thinh: That sounds like a pretty clear position. There are two directions you might go - one is to make more specific findings. E.g. the recommendations how you view the relationship between web pages.
... another thing you could say: as a result of the finding there is a need for interoperability, web pages should be available [for linking].
... unless there is a clear prohibition, putting a Web page up implies giving permission to link to it.
... 2nd direction: soliciting broader community feedback. The more widely adopted a standard or industry practice is the more influential it is.

Noah: I don't think the 2003 finding has been referred to in a legal context.... [What else do we need to say?]

Thinh: There is a lag time in the courts - sometimes 5-10 years. Creative commons was out for 5 years before there was legal case involving one of our licenses.

Noah: If you look at the documents w3c - TAG findings don't have a lot of official status. We have recommendations which [do have more status].

Thinh: That becomes more like an opinion, which are seen as of lesser importance than industry standards.

<masinter> Would (also, instead) getting IETF BCP also help?

Thinh: If you have recommendation that is backed by w3c, you could go to (eg) the gates foundation ...

Larry: If I have an open, public voip service on the Internet not under access control, does that imply giving access to use it? Is it an internet issue?
... I think part of it may have do with denail-of-service and use of resources. People may want to make a service available publicly but not allow 3rd parties to use it as part of a commercial service. "We don't want everyone on the planet to come to our serer for something."

<jar> tbl: the right to refer

Tim: I think the voip example misses the point. With a link you are referring to work - it's about speech - it's about Web 1.0, the static Web...
... there are a few times you may want to constrain...
... if I publish on a web page examples of really bad and really good writing... Or an example of libel which I'm quoting, Then quoted out of context by someone else...

<masinter> Giving someone a URL to someone else's resource is actually giving them a lot more than a reference

Tim: the right to link is a Web thing, not an Internet thing.
... Maybe it's a URI thing?
... A use of an identifier. To the extent that IETF is involved in URNs, they may have an interest.
... example of ISBNs. But in general, it's a Web thing.

<jar> http://www.copyright.gov/circs/circ34.pdf

Thinh: Happy to continue to engage on this.

Noah: Thank you very much.


<trackbot> ISSUE-25 -- What to say in defense of principle that deep linking isnot an illegal act? -- raised

<trackbot> http://www.w3.org/2001/tag/group/track/issues/25

<noah> http://www.w3.org/2001/tag/group/track/issues/25

Noah: We should talk about this....

<noah> What to say in defense of principle that deep linking isnot an illegal act?

Ashok: I wanted to differentiate between access and copying things.

I support opening it and doing something on this issue.

Noah: can we set goals, decide if anyone else in w3c needs to be involved, do we have anyone who's willing to take actions to do the detailed work?

Larry: there is a finding - but it doesn't have the impact we'd like it to have.

Noah: Whould moving it to recommendation status have any merit?

Larry: should a W3C activity of limited scope with the TAG consulting do this or should the TAG do this?

jar: We could turn this into an architectural recommendation.

Noah: One option would be for the TAG to do the work on its own but think about producing a recommendation that would embody some default rules. Another way forward would be to spin up another activity on which the TAG would consult on.

Larry: My personal preference is the latter. If we want a consensus finding it would be better to engage [externally] earlier.

Noah: I think the first one is appealing because of the low startup overhead. I'd like to see if we can get someone on TAG to do a bit of work on this.

<jar> dka: Work on it, in either way [arch rec or separate/affiliated group]. Can fold it into current privacy work maybe?

<masinter> i'm less interested in "low startup cost" and more interested in "low overall cost". I don't htink the TAG can manage a public review process effectively

Dan: Could this be folded in to the working group on privacy which possibly is going to happen?

Ashok: I think this could work out better if there is a particular person who is targetted? Someone on the TAG responsible for driving the work.

<masinter> Dan, it really seems like charter creep and out of scope for privacy

<masinter> suggestion: ask AC

Noah: is there anybody who could do some work here?

<masinter> the end game for this is to manage a public review & comment & editing cycle on what the "default rule" is, the TAG finding isn't explicit on a lot of areas

<masinter> I suggest resolving that the TAG ask the staff to ask the AC to spin somehting up on this

Dan: I'd be happy to be one of the people involved in it.

Tim: I've written something on it. I'd be happy to review what the TAG writes.
... Happy to provide text.

Larry: we could pursue this - but I am concerned about the end game.

<jar> great

Larry: we could ask the staff to propose to the AC something - that it would be useful to have more explicit consensus around this topic ...
... I think that for this to be effective, we should be in a position to invite whoever (e.g. in the Bill & Melinda Gates Foundation wrote that text) and ask them to comment on this.

<masinter> there already *IS* a TAG finding

<masinter> having another TAG finding is unlikely to have any more impact

<jar> impact will require 'community consensus'... findings don't have that

<Zakim> masinter, you wanted to talk about end game and management of it

Dan: I can take the next step [creating a document]...

Noah: OK...

Ashok: I was about to recommend something as a starting point.

Noah: Proposal ro re-open ISSUE-25 and assign Dan action to start a document.

<noah> open ISSUE-25

<scribe> ACTION: Dan to start a document wrt issue-25 [recorded in http://www.w3.org/2010/12/02-tagmem-minutes.html#action01]

<trackbot> Created ACTION-505 - Start a document wrt issue-25 [on Daniel Appelquist - due 2010-12-09].

<timbl> tracker, open issue-25

<noah> ISSU-25?

<noah> ISSUE-25?

<trackbot> ISSUE-25 -- What to say in defense of principle that deep linking isnot an illegal act? -- open

<trackbot> http://www.w3.org/2001/tag/group/track/issues/25

<jar> JAR regrets for 12/9

Admin issues

<timbl> DKA, short and sweet is good for this doc

Noah: I won't be available to chair the 16th.
... week after that is 2 days before xmas.

<jar> ?

Dan: I'll also be at the workshop.

Tim: I'll be at the workshop.

Dan: FYI I will be on a plane on the 23rd anyway.

[discussion on possibility of cancelling on the 9th]

Larry: I'm happy to chair it if it's useful.

Noah: Agenda could include stuff from today that we didn't get to.

<masinter> if thre are urgent topics that can't wait

Noah: Objections to approving the minutes of october f2f?

[none heard]

RESOLUTION: minutes of October f2f meeting approved.

<masinter> did we decide on meeting on 23rd? or will we postpone

Noah: any objections to approval of TPAC f2f minutes?

[none heard]

RESOLUTION: minutes of TPAC f2f meetings approved

<noah> Dropped.

<noah> Larry, can you scribe on the 16th?

<noah> We are adjourned, thank you.

<masinter> yes, i can scribe

<noah> Many thanks. bye

Summary of Action Items

[NEW] ACTION: Dan to start a document wrt issue-25 [recorded in http://www.w3.org/2010/12/02-tagmem-minutes.html#action01]
[End of minutes]

Minutes formatted by David Booth's scribe.perl version 1.135 (CVS log)
$Date: 2011/01/04 20:04:29 $