Magazine article Editor & Publisher

Legality of E-Mail Service Questioned

Magazine article Editor & Publisher

Legality of E-Mail Service Questioned

Article excerpt

A new e-mail delivery service that allows Internet users to "subscribe" to any Web page and have it delivered to their e-mail box -- for free -- is the latest spin on "push" online content services. But is it permitted under copyright law?

Several copyright and intellectual property attorneys say probably not, while the executive in charge of the project -- also a lawyer -- says there is no harm done to publishers who hold the copyright on content distributed by the new service.

The service, introduced last month by New York-based U.S. Interactive, is called Digital Bindery. It copies content from Web sites around the world and then sends that material to its own subscribers. It does not request permission of the copyright holders to do this.

Digital Bindery is a significant departure from other "push" publishing models that have emerged in the last year. Previously, Web publishers controlled the push delivery of their own copyrighted material to subscribers. But now, Digital Bindery is attempting to insert itself as a middleman between the publisher and consumer.

The service can be used to subscribe to, say, a Web site columnist. Each time a new column is posted, Digital Bindery's software agent goes to the site, copies the new article and sends it to those of its subscribers who asked for regular delivery of the item.

Each Bindery delivery arrives in an "envelope" that contains a table of contents listing the Web page(s) enclosed. Users can "subscribe" to multiple Web site columns, articles and features (that are published on a consistent Web page or URL). The system can even retrieve Web content that requires a user name and password to view.

Theoretically the Bindery's free service can compete directly with publishers who maintain free-access Web sites but charge a fee to "push" or deliver their copyrighted material to their own subscribers via e-mail.

From the consumer perspective, the Bindery's service isn't much different from that provided by software programs like FreeLoader, an off-line Web application that Internet users configure to download a Web page that changes regularly. Freeloader downloads a copy of the item to the user's PC, saving the user the trouble of having to go to a specific Web site to copy the file manually.

But according to several copyright and intellectual property attorneys, there's a significant difference between a service like Digital Bindery and client software applications like FreeLoader. The latter, according to copyright and media attorney Sam Byassee of Smith Helms Mullis & Moore LLP in Raleigh, N.C., assists the consumer in making an "incidental" copy of a Web page on his PC in order to read the page, which is what the publisher wants to occur. That's acceptable under current copyright law, and in fact this "incidental" copy rule is what makes it technically legal for a Web browser used by an Internet user to retrieve and store a copy of a copyrighted Web page on his PC for personal viewing.

A third-party company that makes a copy of a publisher's Web page and then delivers it to its customers is intentionally caching pages on its servers in order to send them to its subscribers. Neither copying a copyrighted Web page onto its servers nor sending it by e-mail to other parties is authorized by copyright law, Byassee says.

Robert Kost, executive vice president for product development at U.S. Interactive and the lead manager for the Digital Bindery service, cards that "lawyerly, head of a pin theorizing. …

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