Trying to embed a linkroll for a particular del.icio.us tag on a separate page of Technology Law Culture, the statement from del.icio.us that you as the user own your bookmarks, caught my attention. This statement is perhaps not entirely true.

Do you really own – from a legal viewpoint that is – your bookmarks? And if you do own them, what can you tell others not to do with them?

Depending on whether you have many or just a few links, on what else you add (tags, notes), in what context you create them, and, oddly, where you live, you may or may not have rights on your social bookmarking collection.

Why? Because it is not a given that your (collection of) bookmarks is sufficiently original to qualify for copyright, although the collection may be protected under a database right.

The (EU) Database Right

To take del.icio.us as an example. They say:

del.icio.us does not own your bookmarks — you do! As the creator, you have the right to license this list any way you see fit.

Granted, this is a statement on the page where you set-up your feed, but is del.ico.us right? Under European law, that’s not entirely certain. Under U.S. law, I don’t know. (I really have no idea, Trackbacks, comments or e-mails on the U.S. situation are welcomed!) As del.icio.us says on their help page “it’s good to know the legal details” so let’s dive right in.

Under the Berne Convention, artistic and literary works receive copyright. But, your collection of links on say, copyright, may not be literary enough to be copyrighted.

Under the national implementing laws of the EU Database Directive, you receive a database right (which is different from, and might be received in addition to copyright in the structure of the database or the underlying constituent parts) when you make a “substantial investment” in the creation of a “collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic means” in “any form”. Sounds like a social bookmarking site to me.

But wait, in addition, I need to have made “qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” of the collection. When is this the case? Well, although most database cases deal with telephone listings, sports fixtures and the like, in one German case, Kidnet v. Babynet, 251 links were considered a database worthy of protection. With 727 public links as of this day, I should be golden then. If I add plenty of tags, and notes describing what the content links to, the investment becomes more substantial.

And what do you get with this database right? 15 years of protection against substantial or repeated “extraction” and “re-utilization”. This might include using my feed for other purposes than I intended, as I may have expressed it with a Creative Commons license or otherwise. (By the way, the cases that I am familiar with, although playing out a time when RSS was already there, deal mostly with framing, or scraping. Push/pull adds another dimension. For one such case, read kranten.com, an early Google news if you will.)

So, when Denise Howell talks about Jason Calacanis rejecting any implied licenses in feeds, he may have a point as far as database rights are concerned as well. (That is, if he would be based in the EU; for sake of brevity and argument I am not discussing jurisdiction questions here.)

Conclusion (For Now)

So, you might have rights for your collection of bookmarks on your favorite social bookmarking site but it is not altogether sure that you can prevent the kinds of re-use that might typically be made of your collection. For example, one type of use discussed today is where a third party repurposes your collection (and that of other users) to make a “parasitical competing product” (to quote the Database Directive). Except, the product competes with whatever site or service you contributed your bookmarks to, and they are likely not the beneficiaries of a database right.

Now what? I don’t have the answer ready. (And this post is getting rather long, so the conclusion will be short.) The question about (reusing link collections from) social bookmarking collections illustrates a greater point. These days, the web has more, and more interconnected, pieces of content, moving in different directions. In addition there is meaning in the underlying syntax, whereby such meaning can be immediately apparent or needs to be extracted first (mash-ups! semantic web!). This means that we are less dealing with one-on-one (or even one-on-many) relationships, and more with small pieces loosely joined. This point is not new, but I think that the above example illustrates, if very rudimentary, how this plays out. With the live web, me might have to think a little about how to apply some of the existing rules.

(More on Database Law)

(Writing this post, I was reminded of a paper [pdf] I wrote on the topic of database law when at Duke Law in 2000. (In the paper, I manage to talk about “the right amount of incentive without too much of a stifling effect” and “the development of the computerized and networked global village” while taking myself completely seriously ^^.) In any event, since then, the ECJ (European Court of Justice) has interpreted the Database Directive in four decisions, handed down simultaneously. See for a good discussion of those cases Professors Mark J. Davison and P. Bernt Hugenholtz in EIPR 2005, Issue no. 3 [pdf].)

(By the way, I didn’t actually manage to get the linkroll I mentioned at the beginning of this post up and running quickly on WordPress, so that will have to be for another day.)

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[This is a post from Technology Law Culture: http://tlc.oosterbaan.net. Olivier Oosterbaan, ICT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

“Zoek alle huizen” (Search all houses, www.zah.nl), a site that aggregates residential real-estate listings from several sites, recently won a court case in which two of the operators of sites the content of which “Zoek alle huizen” repurpossed, asked for an injunction that “Zoek alle huizen” stop doing so. With the advent of vertical search, I would not be surprised if we see more of these type of cases in the near future, before we move to a search environment that provides for more shades of grey, including open-search and licensing of publicly available search. In this post, I will highlight four parts of the judgment: relating to database infringment, copyright infringement and thumbnails, website terms and conditions and contract law, and general tort and Internet search.

The Facts

Zoek alle huizen (Search all houses) repurposes from a large number of real-estate sites for each listing contained thereon a thumbnail, the price, the address and two or three lines from the description of the listing.

Zoek alle huizen reserved one-third of the press-release announcing their launch for a statement of their counsel that re-using the contents of other sites was not infringing use. (See the Press release in Dutch, having Professor Dirk Visser state that Zoek alle huizen is a specialized Google.) Taking the cue, one of the main realtors associations, NVM – together with two member realtors – promptly sued Zoek alle huizen.

The Case (And a Little Bit of Analysis)

In summary proceedings, the Arnhem court (March 16, 2006 ruling, in Dutch) rejected the claims that Zoek alle huizen be enjoined from repurposing the contents of the sites of plaintiffs. Despite being summary proceedings, the ruling is relatively long, as plaintiffs used pretty much every argument in the book: database infringement, copyright infringement, deeplinking (whether or not allowed), bypassing technical protection measures, breach of contract (of the terms and conditions on the site), and general tort. Let me highlight four.

Can You Receive Protection for Databases Created As Part of Your Main Business?

This case is interesting in the sense that it is handed down after the ECJ’s British Horseracing Board v William Hill and Fixtures Marketing rulings. Summarizing, in these cases, the ECJ decided that, to have a database worthy of protection (under the Database Directive 96/9/EC) you need to make the substantial investment required in connection with the collection, verification and presentation of the data (the materials) in the database itself. Any expenditures in the creation of the materials does not count towards the substantial investment.

In the Zoek alle huizen case also, the judge did not award protection to the database that drove the website from which the information was retrieved. Although the realtor’s had claimed that they had spent EUR 150 to 200 on creating and maintaining the materials for each listing, the court held they had not sufficiently proven that they had made substantial investments in collecting, verifying and presenting the data in (or into) the database itself.

For companies that rely on proprietary, publicly available (open-access) websites to support their main activities, it cannot hurt to separately document their costs for creating the materials that go into the database underlying the website, and the costs for the creation of the database itself.

Can Thumbnails Infringe?

Surprisingly, according to the court, the use of scaled-down thumbnails of the pictures of properties caused these pictures to loose any (presumed) copyrighted status. I would tend not to agree with this conclusion, and mention it here only as an aside because of the recent Perfect 10 v. Google case before the Ninth Circuit in the U.S. (See Fred von Lohman, via Denise Howell. I understood that the indexing in that case was allowed under fair use, a concept that we do not have in European copyright law.)

Can You Limit the Use of Your Website Content Beyond Any Protection Under Copyright?

NVM had argued that the terms and conditions on their member’s websites limited Zoek alle huizen in their reuse of the contents. The court held that such limitations are not enforceable: as the realtors had placed the information on their website, they could not limit the reuse of this information beyond what would be allowed by copyright, database or tort law. In other words, they could not extend or assert rights they did not have by means of terms and conditions on their publicly available websites.

(The court continued that the terms and conditions are illegal (and for that reason void) on the basis of anti-trust law. According to the court, the NVM-member realtor’s that applied the NVM-recommended T&Cs engaged in concerted practice in the market of Web-based realty listings. I am not sure I would agree with such a narrow market definition.)

Can Vertical (Meta) Search Amount to Free-riding?

The realtors had argued that the repurposing of the content of their website amounted to tort, as Zoek alle huizen was free-riding on their efforts. The court rejected this claim also. According to the court:

The website of Zoek alle huizen should be regarded as a search engine. [The website] allows consumers to search for almost all of the houses for sale in the Netherlands. In doing so, Zoek alle huizen uses – publicly available – data from the Internet (and that was made available on the Internet in a legal manner). For this reason, the website of Zoek alle huizen cannot be regarded as a direct competitor of the websites of the NVM-realtors.

Is This Case an Indication of What’s to Come?

To me, this case is about shades of grey in the area of search. I am not sure that you can ever make a clear and hardline distinction between what is and is not allowed for search engines. If meta-search and framing is not cool, and indexing the whole web is, where is the grey middle? And what if its the end-users that make the vertical search? And what if that vertical search (or search lens) is limited to one site? (See Pete Cashmore, through Corante Web Hub, on Amazon’s Alexa; Rollyo; or Google Co-Op.)

The argument – also made and accepted in this case – that repurposing of content can never be tortuous since it drives more traffic to the site of which the content is repurposed I think is too simple and not always valid. As we are likely to see a few more search-related court cases in the near future I hope that courts will take the intent of the parties in repurposing the content into account when deciding these.

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[This is a post from Technology Law Culture: www.technologylawculture.com. Olivier Oosterbaan, ICT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture by: Me, actually. This is where I used to live while at Duke School of Law ^^.)