Wal-Mart told SearchAllDeals and TechCrunch to immediately take down links to Black Friday deals that weren’t supposed to be out before November 24. SearchAllDeals and TechCrunch didn’t publish the content. They just linked to it.
Okay, so Wal-mart is upset that someone jumped the gun and linked to their Black Friday page early. The easy solution would have been to make sure that the infringing information never leak in the first place, and definitely make sure that it’s not on a publicly-available web page. And, last I checked, every retailer in the country would love to have the kind of press that Wal-mart got when those sites broke the story about the cool, incredible deals that Wal-mart was planning for Black Friday. I have always believed that Apple actually wants the bloggers to try and find out what is going on in secret at the Apple labs just because the press those leaks generate is so beneficial to the company.
But even more more disturbing is that this is not a case of plagiarism or copyright infringement, at least by most people’s standards. SearchAllDeals and TechCrunch did not publish the content — they only linked to it. Since I’m not a lawyer or a DMCA expert, I don’t know if Wal-mart’s claim is legit or not. But if it is, that would have a chilling effect on the web as a whole. I link to lots of things — from my blog, from my website, in comments on other people’s blogs — and I’m sure most of them have a “©” copyright line at the bottom of those pages. In fact, most blogs have a copyright line, and for good reason. Someone has written that blog, and it should not be plagiarized. And when I quote someone’s blog, I always make sure to credit the author as well as link to the original piece. Look all over Facebook: half of the news on my homepage are links and comments on outside website/pages/blogs/videos. Are those links legal? If not, we’re all in big legal trouble.
What Wal-mart doesn’t get is 1) free publicity is good (duh!), and 2) the “social media” segment of the web is based wholly on links from one copywritten work to another — there must be a way to legally link and quote sources across the web. If not, a large portion of the fastest-growing segment of the web, the social network, will shrivel up and die.
Solutions? Only one: define infractions/re-write the DMCA to be more specific and reflect the current online climate. It wasn’t written very well when it was enacted anyways, and the web has seen a sea change since the DMCA was passed (Clinton signed it into law in October 1998).