Deep linking: firewalls versus contracts

Last week Phil Wainewright discovered IDG's linking policy, and was not amused:

I am starting to regret the several thousand visitors that Loosely Coupled has sent to InfoWorld articles in the past year. It turns out all those links were in breach of InfoWorld's terms and conditions. We shall think twice about linking to IDG titles in the future, even though some of the best writing about the topics we follow can be found on InfoWorld's pages. But if IDG decided to start barring links from us, we would end up having to rename ourselves Brokenly Coupled and their title might just as well be called InfoWalled. This would not be in the best interests of either of our readerships. [Loosely Coupled]
This was news to me as well, and to others. For some reason, the first round of discussion of this issue, about a year ago, never showed up on my radar screen.

From what I can glean, the IDG policy is aimed at TechTarget and others in IDG's competitive set, not at the likes of Phil Wainewright. But there's no explicit definition of the competitive set. Does Google, for example, count as a competitor? After all, its index contains a whole lot of InfoWorld links, and its service displays those links on ad-supported pages.

In such cases there's never a single well-defined competive set. If you were to draw the Venn diagram, you'd realize that areas of intersection denote both competition between entities and cooperation among them, in varying degrees according to the entities involved.

Since IDG policy is way above my pay grade, let's switch to another example, because there are some issues here I've been wrestling with myself. Recently, as part of my ongoing hypermedia project, I've been doing lots of deep linking of freely available AV content. Last Thursday, Jon Pareles wrote an excellent New York Times overview (registration required) of the subject. Among the range of choices, the article mentions Webjay (which I've also discussed) and several of the most well-stocked radio stations.

One of those radio stations is KCRW in Santa Monica. A while ago, I got hooked on Nic Harcourt's show, Sounds Eclectic. The site doesn't offer an RSS feed, so I made myself one in order to be reminded of new shows. And since I had the data, I linked the title of the feed to a page of links just because it was convenient to review the archive that way.

There's a ton of good music there: 200 2-hour shows. Even though I've joined and donated to KCRW, and even though I could find no evidence of a policy forbidding what I'd done, I've felt vaguely uncomfortable about optimizing my use of their stuff in this way.

But it doesn't stop there. Over at Webjay, I've shown how it's possible to create playlists that deconstruct Harcourt's format. For example, this playlist features three performances by Rachael Yamagata, from two different KCRW shows. One's a video segment, the other two are audio clips. These are really deep links. They don't just point to the streams, they isolate the performances from the surrounding KCRW context that the complete streams supply. Clearly such violation of context could be misused for commercial gain.

I'm too much a creature of the Web to ever think that outright blocking of links could make sense, even as a lesser-of-two-evils compromise. In a subscriber-access regime, of course, you can skirt the issue by sending the non-subscriber to a preview -- effectively, an ad. But many publishers also want to maintain lots of open content in order to build global mindshare. It's easy to write firewall rules in such cases, but much harder to write contracts that define acceptable uses. One reason, as I mentioned, is the intersection of competitive and cooperative aspects. Will more precise delineation of those aspects help? What do contracts that do that look like?

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