New World Order: No Linking Without Permission

Oklahoma Gazette | March 2, 2005
Michael Bates, no doubt, has regular readers, mainly those interested in Tulsa happenings. But Feb. 15, his weblog,, had an appeal to a more national audience.

“NOTE to those of you who normally skip the Tulsa stuff here: Please read this entry. This is not just about the sordid little world of Tulsa politics,” Bates wrote in his first entry of the day. “This is the old media trying to intimidate their critics in the new media into silence.”

The old media referred to in the passage is the Tulsa World. The new-media critic? Bates’ blog. In a Feb. 11 letter by World Vice President John Bair, Bates was asked to cease and desist in his use of hyperlinks to World articles and the reproduction of articles (in whole or in part). Bair said in the letter that the use of such content, without permission, infringed on the World’s copyright, as well as other rights it has to the exclusive use and distribution of such materials.

World attorney Schaad Titus said the very fact that the newspaper’s Web content is available only to paid subscribers makes it necessary for those who post articles in full to seek permission from the World for the very reason that the site’s content is not free. He added that direct hyperlinks, which don’t outright copy content but refer to an HTML page where it can be found, also act as a copyright infringement because they “avoid the pay provisions of the Tulsa World’s Web site.” If such links prompted the reader to pay before viewing the content, then the hyperlinks would be acceptable, Titus added.

Titus said letters were sent to several individuals regarding use of World content and not just Bates. As of press time, Bates had not been issued a subpoena by the World, although Titus said there are no assurances as to how the World will handle the issue.

“We’re not singling anybody out. Some people may have obtained permission, and if Mr. Bates had come to us and asked for permission, we may have granted him permission,” Titus said. “It’s not a free-speech situation; it’s that we have paid for the costs to generate this content.”

All this strikes Bates as odd since he has been blogging about Tulsa since 2003 and has had no prior contact with the World about this issue. Bates also said he uses only hyperlinks or excerpts of articles and not full reproductions. He added that the Coalition for Responsible Government posts entire World articles and photos on its site — as of press time, it continued such posts.

Bates said his use of hyperlinks and World excerpts is protected under the Copyright Act’s fair use provision, which allows for a portion of work to be copied for criticism or commentary.

“If I had to ask the permission of the World to quote from them, then my ability to criticize what they do is severely limited,” Bates said. “And if I have to fear a lawsuit every time I do something like that, there’s a chilling effect and I’m not going to want to take that risk. So, the fair use provision is important in civic dialogue.”

Ronald Coleman, general counsel for the Media Bloggers Association, represents Bates and agreed there is no violation of the Copyright Act.

“At the end of the day, you are allowed to deep-link into someone’s Web site for just about any purpose; if it’s on the Internet, you are allowed to give people directions there,” Coleman said, adding that, in most cases, excerpting material isn’t a violation, either.

An exception, and a violation of fair use, Coleman said, includes framing, whereby a third party deep-links to content from another source but juxtaposes it into his or her own Web page’s frame.

The World dispute could result in more publications requiring a contractual user agreement at registration, whereby a reader must pledge not to deep-link in order to legally gain access, Coleman said.

Coleman said the dispute raises many interesting issues.

“They’re so heavy-handedly telling him, ‘You have no First Amendment rights as regard the Tulsa World: You can’t link to us; you can’t excerpt from us.’ And that’s just not true,” Coleman said. “... It’s just such an incredible emblem of the thick-headedness of old-media monopolies and their own inability to react rationally to a new-media landscape.”

The court of public opinion has been in session since the issue came to the fore in mid-February. Bates’ weblog, which typically sticks to local issues, has seen increased action during this time, much of it from the national level. CNN’s “Inside Politics with Judy Woodruff” discussed the issue and so have prominent bloggers such as Michelle Malkin and Glenn Reynolds, as well as comments from many local blogs. Batesline has jumped from a No. 2,000 ranking among blogs to being in the Top 200 as of late February.

Bates said he is not sore over the World dispute.

“I’m more amused,” he said. “... I really believe the Tulsa World thought, ‘We’re going to send this threat out and these guys are going to crumble and run away and hide, and they’re not going to want to challenge us.’ Well, the World, they still have a mindset of Tulsa as an isolated corner that nobody else cares about ... but the reality is, because what they’ve challenged cuts to the heart of blogging and criticism, generally — whether it be in print or online — a lot of people do care.”

Oklahoma Gazette

In its inaugural issue of Oct. 15, 1979, Oklahoma Gazette, at that time an upstart, bimonthly publication with a mere 2,000 circulation, featured a page-one story about the Oklahoma City Council’s recent passage of an urban conservation district. Hardly sexy...
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