No linking to NPR?
No way!
Network amends rule after much scoffing
After outraging many webheads with an effort to tame the Internet, NPR has backed away from a policy restricting links to its website.
Until two weeks ago, a policy statement posted on NPR.org proclaimed: "Linking to or framing of any material on this site without the prior written consent of NPR is prohibited." NPR asked linkers to complete an extensive form giving their name, site address, text of the link and so on.
The critics challenged NPR's concern that some links to its site could falsely suggest endorsements or financial relationships to some web users. They charged NPR with stifling what they regard as the medium's lifeblood: the freedom to link to anything, anywhere, in the spirit of public discourse, adding to the weave of references that makes surfing useful and fun.
For at least two years, the policy escaped the notice of most webmasters. NPR mostly ignored them in turn, never enforcing the policy even as hundreds of their links proliferated.
Then it came to the attention of Cory Doctorow, a writer and contributor to the website Boing Boing (boingboing.net). Boing Boing is a weblog, a compendium of links to articles and quirky sites, updated many times throughout the day. Linking is a weblog's raison d'être.
"Brutally stupid," wrote Doctorow, underlining the irony that NPR, devoted to nurturing public discourse on the air, would try to stifle it online by discouraging links.
Within hours dozens of other webloggers piled on, many linking to NPR.org just for spite. Epic discussions of the policy unfolded at popular 'Net salons such as Slashdot and MetaFilter. NPR received more than a thousand letters of condemnation, with some writers threatening to withhold pledges to local affiliates until NPR reconsidered.
"[L]et's just say they should stick to what they know best, which obviously isn't the Internet," scolded Wired News.
Gray areas of the digital kind
NPR isn't the only company concerned about the sanctity of its online documents. TicketMaster, auditing firm KPMG and the Dallas Morning News have also tried to control linking to their sites. Like NPR, they became laughingstocks among web geeks.
But NPR's policy stood out for its severity. Other such policies tried curbing only what's known as "deep linking," or linking to pages beyond a site's front page. Those site proprietors cited fears of having their content misrepresented or of visitors bypassing front-page ads.
NPR's policy differed in that it aimed to control links even to its site's front page.
"It does kind of fly in the face of the policies of the Internet," said Bruce Sunstein, an intellectual property lawyer. "It's definitely extreme."
"The fact of NPR's site, and the pages that are on it, are public facts," Doctorow said. "It's as though they're saying that it's not proper for someone without permission to stand on a street corner with a sign that says, 'NPR this way.'"
The Washington Post and the New York Times openly allow links to all of their pages, and the Los Angeles Times stipulates that webmasters can link to its pages as long as they agree not to if asked.
In its defense, NPR said it was trying to preserve its integrity as a noncommercial organ of journalism. NPR Ombudsman Jeffrey Dvorkin explained in his online column: "NPR has had some unscrupulous types try to aggregate (borrow?) NPR content for commercial purposes."
Those worries spawned the policy two years ago, when NPR's news division discovered websites mingling links to NPR content with ads. Sometimes NPR allows this in underwriting deals with sites such as Yahoo. But these sites were unknown to the network, and NPR's legal department not only created the policy but also asked the sites to remove the links.
The policy was also intended to restrain link abuses by advocacy groups. NPR said it has found sites "that have positioned the audio link to an NPR story such that one cannot tell that NPR is not supporting their cause."
Critics scoffed at these justifications. "Look, how many people are going to say, 'NPR endorses the Association for Golden Retriever Killing?' That's a limited risk at most," wrote David Rothman on the website TeleRead. "On the Web, linking just does not imply endorsement unless there is explicit language saying so."
Why not just rely on copyright and trademark law for protection? asked bloggers.
Part of the problem, NPR said, is that the power of such laws online is largely untested. In February, a panel of judges ruled for the U.S. 9th Circuit Court of Appeals that a company broke copyright law by including another site's pages in a window on its site, the practice known as framing.
Deep linking, however, has survived legal challenges. "There is no deception in what is happening," ruled a U.S. District Judge in TicketMaster's case, as quoted in a Wired News article. "This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently."
Forget the form
In short order, the criticism spurred NPR to revise its policy. "Most linking that goes on is good, and we want to encourage it," said spokeswoman Jenny Lawhorn.
The new policy, [then] posted at npr.org/about/termsofuse.html, eliminates the permission form but prohibits framing and says linking should not endorse any third-party causes or use NPR content for "inappropriate commercial purposes." NPR also reserves the right "to withdraw permission for any link," the policy says. A fine-print link at the bottom of every NPR web page leads to the statement.
The online din has quieted, but some critics remain miffed. Doctorow says NPR has no legal grounds for prohibiting links not already barred by intellectual property law.
"Tell me where the need for that policy is," he says. "You don't need a policy that says doing stuff that's illegal is forbidden."
Lawhorn says the new policy does offer extra protection, but wouldn't explain further.
Jonathan Hart, a media and technology attorney with Dow, Lohnes & Albertson, says the terms of use may create a layer of contractual protection not otherwise available under copyright or trademark law, assuming that the visitor agreement is an enforceable contract between the website and the user. But the case law on when such contracts are enforceable is still thin, and Hart says it may take several more years for courts to clarify the issue.
Meanwhile, Doctorow's work may not be finished. Upon learning that Minnesota Public Radio forbids links to its audio files, he moaned and wondered if he had enough gusto to tangle with another pubcaster.
Web page posted July 9, 2002
Copyright 2002 by Current Publishing Committee
