Deep Linking Issues Return As Music Lawsuit Hits Baidu, Sohu
Chinese search engines Baidu and Sohu face millions in penalties as Sony BMG, Warner Music Group, and Universal Music demand satisfaction over links to songs controlled by the labels.
Big music labels will try to slay the Chinese dragon of song piracy by forcing major Chinese search sites Baidu and Sohu to cut their links to pirated songs.
Good luck with that. When people want music, as the Wall Street Journal pointed out in its report, they will find ways to get it even if the two search sites Americanize themselves to satisfy the labels.
The Beijing First Intermediate People’s Court faces the task of deciding the case. If they opt to penalize Baidu $9 million in damages, and Sohu $7.5 million, they could be sending a message that linking to content they do not host assigns liability to the search engines.
Both Baidu and Sohu deny any responsibility for what other sites host. As search engines, they only provide a list of links.
The lawsuit poses greater implications beyond the song-listening habits in China. Armed with a decision in favor of the plaintiffs, other litigation-minded types around the world might decide the time is right to bring back the "deep-linking" lawsuits of yesteryear.
You have to go all the way back to 1997, as the Web started to takeoff into mainstream usage, to find the Ticketmaster versus Microsoft Sidewalk lawsuit over linking. Ticketmaster did not want Sidewalk linking directly to individual event pages, but to the home page of Ticketmaster instead.
As Salon recounted, Ticketmaster had a deal in place with CitySearch at the time to permit it to "deep link" to ticket pages. Eventually everything reached a settlement.
Everything but the concept of deep linking.
Without hyperlinks, there is no Web. The news industry used to complain about deep links to their stories, around the time Ticketmaster made its rumblings at Sidewalk.
But if there is a law against deep linking, we have yet to see it. Despite that, American sites routinely yield to lawyers who complain about links to content the sites themselves do not host.
The issue needs a decision, for more than just the idea of deep linking. It comes back to fair use, a nebulous concept that resists attempts to define, yet seems to become more restrictive year after year. JD Lasica wrote Darknet to address the continued erosion of fair use by deep-pocketed music, movie, and publishing interests.
Though it has been claimed fair use needs to be loosely defined to work best, as to not push any particular content into a model that doesn’t really suit it, fair use and its advocates need to grow up and figure out a way to function in the 21st Century.
Otherwise, a Chinese court may make that decision for everyone. It may not be the best decision for a Web that grew on its strength of links. If the bullying music industry makes its mark in China with this case, make no mistake, others can and will try to use it to their advantage.
A world of commentary controlled entirely by corporate interests, even more so than today, can’t be what’s best. It’s not all about links. It’s about control.