Mashups and DMCA

Copyright and intellectual property questions are starting to pop-up around mashups. For example, Denise Howell recently wrote in Lawgarithms about mashups and patentability.

Someone asked me today whether they could file a patent application concerning their Google Maps mashup.  Not being a patent lawyer, I haven’t the foggiest, but it’s an interesting question.

An equally interesting question that came up in a conversation today is whether the Digital Millenium Copyright Act can be invoked to shut down mashups.

If the mashup is going against published APIs then the answer would depend on the legal restrictions in the API license agreement (if any). Typically, since a Web services API assumes no presentation, I can’t see how DMCA can be invoked. The real question was whether scraping of HTML and/or deep linking may allow the site owner to be able to make a claim under DMCA that the intended presentation is being circumvented.

Update:

I reached out to a few experts on the issue. The answer seems to be no. DMCA would typically apply only in the cases where DRM is circumvented. Other than that, there is a standard copyright question.

Jason Schultz, an EFF attorney and the leader of the Patent Busting Project, comments:

Do you mean the notice and takedown provisions of the DMCA under Section 512 (used to remove unauthorized copyrighted material from the web) or the anti-circumvention provisions under section 1201 (used to shut down devices that unlock encrypted content or circumvent DRM/secure content systems)? They’re two separate parts of the same law.

To the extent that mashups like Google Maps import copyrighted content (like map panels) in violation of the API terms, one could argue that this is a copyright violation and can be taken down under Section 512. But to the extent the mashup simply instructs the browser to import the content directly via the API (e.g. directly from Google’s servers), I can’t see if being used that way.

As for Section 1201, some have argued that exceeding the limits of a license agreement qualifies as circumventing a technological protection measure under the DMCA, but I don’t think this is the majority view. If there is a technical restriction that’s one thing, but a legal restriction is not what the DMCA was intended to enforce, IMO.

There has always been a controversy about “deep linking” and in-line linking on the web. So far the courts have generally ruled in favor of the deep-linkers unless there is an express password or gateway they have to circumvent or they misrepresent the linked-to content as their own.

Steve Frank, a great IP attorney and the author of Intellectual Property for Managers and Investors : A Guide to Evaluating, Protecting and Exploiting IP, makes the following points:

I don’t think using a site in an unintended manner ordinarily rises to the level of a DMCA violation — at least not unless a DRM feature is somehow circumvented. Rather, the issue strikes me as one of copyright and whether some sort of implied license is exceeded. (If you have a license but stray outside what’s permitted, you’re an infringer.) That depends on a lot of factors and there isn’t a lot of law. More generally, if you violate an explicit user agreement or somehow misuse a service so as to cast a burden onto the server owner, you can be liable under various theories. If you link to or use someone’s site in a manner that passes the content off as your own, you’re also liable. But if you merely combine someone else’s site features with features of your own, you make the origins of the components clear, use them as intended, and don’t have an agreement with the site owner, you’re probably safe.

I’m not aware of any case holding that deep linking violates anyone’s rights. I can’t see how it could, given your premise that the linked-to content is properly attributed. How explicit must the attribution be? Good question! More visibility = less risk. Hopefully there is some way to at least indicate that the content is linked rather than owned.

About Simeon Simeonov

I'm an entrepreneur, hacker, angel investor and reformed VC. I am currently Founder & CTO of Swoop, a search advertising platform. Through FastIgnite I invest in and work with a few great startups to get more done with less. Learn more, follow @simeons on Twitter and connect with me on LinkedIn.
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