CBC: A Case Study in what happens when the Lawyers take over

Like many other people, I’ve been following the virtual meltdown at the CBC over its new (i)copyright rules. For a great summary of the back and forth I strongly encourage you to check out Jesse Brown’s blog. In short the terms of use of the CBC seemed to suggest that no one was allowed to report/reprint excerpts of CBC pieces without the CBC express permission. This, as Cameron McMaster noted, actually runs counter to Canadian copyright law.

And yes, the CBC has been moving quickly and relatively transparently to address this matter and hopefully clearer rules – that are consistent with Canadian law – will emerge. That said, even as they try, the organization will still have a lot of work to do to persuade its readers it isn’t from Mars when it comes to understanding the internet. Consider this devastating line from the CBC’s spokeperson in response to the outcry.

You’ll also still be able to post links to CBC.ca content on blogs, Facebook pages, Twitter or other online media at no charge and will continue to offer free RSS stories for websites (found here).

Really? I’m still allowed to link to the CBC? How is this even under discussion? Who charges people to link to their site? How is that even possible?

Well, if you think that that is weird, it gets weirder. Dig a little deeper and you’ll find what what appears to have so far gone unnoticed in the current debate over the CBC’s bizarre terms of use. On the CBC’s Reuse and Permissions FAQ page the second question and answer reads as follows:

Can we link to your site?
We encourage people to link to us. However, we ask that you read our Terms of Use, which outline the conditions by which external sites may link to ours.

So what are the CBC’s terms of use to linking to their site? Well this is when the Lawyers really take over:

While CBC/Radio Canada encourages links to the Web site, it does not wish to be linked to or from any third-party web site which (i) contains, posts or transmits any unlawful, threatening, abusive, libellous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including, without limitation, any content constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, provincial, national or international law, regulation which may be damaging or detrimental to the activities, operations, credibility or integrity of CBC/Radio Canada or which contains, posts or transmits any material or information of any kind which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, could be harmful to minors, harasses or advocates harassment of another person, provides material that exploits people under the age of 18 in a sexual or violent manner, provides instructional information about illegal activities, including, without limitation, the making or buying of illegal weapons; or (ii) contains, posts or transmits any information, software or other material which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights, or which is protected by copyright, trademark or other proprietary rights. CBC/Radio Canada reserves the right to prohibit or refuse to accept any link to the Web site, including, without limitation, any link which contains or makes available any content or information of the foregoing nature, at any time. You agree to remove any link you may have to the Web site upon the request of CBC/Radio Canada.

This sounds all legal and proper. And hey, I don’t want bigots or child molesters linking to my site either. But that doesn’t mean I can legally prevent them.

The CBC’s terms of use uses language that suggests they have the right to prevent you, or anyone from linking to their website. But from a practical, business strategy and legal perspective it is completely baffling.

In my mind, this is akin to the CBC claiming that it can prevent you from telling people their address or giving them directions to their buildings. Or, the CBC is claiming dominion over every website in the world and that they may dictate whether or not it can link to their site.

I have my suspicions that there is nothing in Canadian law to support the CBC’s position. If anyone knows of a law or decision that would support the CBC’s terms of use please do send me a note or comment below.

Otherwise, I hope the CBC will also edit this part of its Terms of Use and its Reuse and Permissions FAQ page. We need the organization to be in the 21st century.

15 thoughts on “CBC: A Case Study in what happens when the Lawyers take over

  1. Kempton

    I had been busy for the last few days and had no idea that CBC and its in-house and outside lawyers have gone this crazy.To be diplomatic and avoid being sued by the guilty, these lawyers really had little knowledge in Copyright law when they draft these terms, do they? When a regular Joe like me knows more (by reading the relevant precedence-setting court case, I think there is one big one) than those “educated” lawyers, there is something wrong in this picture.

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  2. deadsquid

    Aside from that last sentence, it sounds more like they're reserving the right to take action on their end to prevent content being displayed when referred/originating from sites they're not crazy about, and giving people fair warning about their terms. A number of orgs I've worked for in the past have done this for a variety of reasons, and it's within their control (and, arguably, rights) to do so. Whether it makes sense or not from a practical and business perspective isn't relative, as it's more of a “hey, we told you our policy” since so many decisions these days go against organizations whose policies aren't clearly documented because they didn't tell you so.As far as I know, there's no precedent on rights to hyperlink in Canada. There's been considerable work done on whether linking to content creates liability for the linker (in the cases of people linking to defamatory or copyright content), but very little on whether rights holders/site owners can actually require someone to unlink to their content. That last sentence is again a “hey, we told you so” in the event they do decide to take some kind of legal action in the future.It may be a stupid policy in practice, but it's like any legal document, which is designed to protect their rights in a worst-case scenario. The enforceability of the “agreement” is probably not there, but because there is no law either way (and that's the important bit), it's not uncommon to put that kind of clause in place in the event it's needed for future, and unforeseen, actions (including defending themselves against liability claims brought on by third parties). The sad truth is that what's rational to people frequently doesn't cut it in a courtroom. This document is more about risk mitigation in the event they feel they need to take action, or if action is taken against them idirectly. Whether it's enforceable as an agreement would require litigation of some kind, but prudence requires they hedge to mitigate their risk because of the way our court systems can work.

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  3. fatcitizen

    Deadsquid is right on the “rational” v. “courtroom” debate. There is no Canadian case law on “linking” to websites in this manner (that I'm aware of…admittedly I haven't checked in great detail) and if a smart lawyer can convince a judge that the link is a substantial “reproduction” of the original content (which, according to Canadian copyright law, is the exclusive domain of the copyright owner) and that the reproduction is not fair dealing (for educational or news gathering purposes, for example) they would be within their rights to deny permission to make the link.That said these terms of use documents are usually just scare tactics that lawyers use to push people around when it suits them.

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  4. David Eaves

    deadsquid – great comment. Would be interesting to hear if anyone has heard of a precedent around hyperlinks to content in Canada (or elsewhere?). What your comment does leave me wondering is whether CTV, Global, the Globe and Mail or other news orgs have a similar clause on their web sites terms of use (too busy at the moment to check it out) but if not… are their organizations simply tolerating a higher degree of risk or did they come to a different conclusion around where Canadian law is on this subject.Part of me feels like no. If not, maybe there is something around citations in the law. These terms of use are analogous to the CBC saying that a book it doesn't like isn't allowed to cite (not quote, just cite) one of its articles if it says so…

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  5. markdiner

    Very interesting reading. Compare this against the Government of Alberta' s much more reasonable linking condition:Links from Other WebsitesThere may be circumstances where access to this website is provided by a hypertext link located at another website. The Government of Alberta has no responsibility for the content of such other sites and does not endorse, authorize, approve, certify, maintain, or control these external Internet addresses and does not guarantee the accuracy, completeness, efficacy or timeliness of the information located at such addresses.

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  6. Pingback: CBC and iCopyright – a marriage doomed to fail « Kempton – ideas Revolutionary

  7. deadsquid

    The Globe's site is simplified, stating that “you may reprint the article headline and then link to the full text of the article on our website.” So, they're probably applying a by-exclusion method where they tell you explicitly what you can do, and the assumption is that everything else isn't permitted. The CTV site doesn't have any policy that's readily apparent, nor does canada.com. So, it looks like “no” is right, or those policies are just well-hidden.They're all _really_ good at outlining how they're not liable for anything they link to, but in general don't have a lot to say going the other way around. With that, I should get back to work, but I am curious too if there has been precedence set, or if a lot of the other orgs just feel it's not a risk they need to worry about.

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  9. James M. Burton

    “And hey, I don't want bigots or child molesters linking to my site either. But that doesn't mean I can legally prevent them”um, yes, you can legally prevent them. **** unless you mean you can't prevent them from linking under an existing statute or case law that specifically discusses blocking links – that is true ****a site administrator can set up an http request trap which examines the HTTP_REFERER URL and refuses connections by computers which have been referred by a specific URL.HTTP_REFERER it is a chunk of information used all the time to find web pages that are linking to pages that no longer exist. it is also used to stop bandwidth theft. i have a site on my server that has pictures of flowers and plants – other sites were embedding the pictures on their sites using an http request for the picture – and then placing their own content around my user's pictures – so we disallowed any HTTP request that was not the local host to call the picturesthe same kinds of techniques can be used to block contact with the server from specific URLs or blocks of IP addresses. it is part of the arsenal used to defend against denial of service attacks, spam assaults, and other such internet events.so, technically a link can be blocked. it is legal to block someone connecting with your site (pending other legal action by the linker…)however, there is no “link specific” legal recourse (using the courts) to stop someone from linking… sort ofa website owner could still take a party that links to their website to court and request an injunction to stop the link under various grounds – the same way someone could be taken to court to stop the use of a name, picture, or other material – the party could claim it was injurious to their image/repuration to have the outside link exist – like if white supremacists were linking to a streaming video or something like that – you get the idea

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  10. Glenn Dingwall

    There was a recent case in BC: Crookes v. Newton (http://www.canlii.org/en/bc/bcca/doc/2009/2009b…) that touched on the issue of whether or not a hyperlink is considered a publication. This was in the context of a defamation lawsuit. The court rightly concluded that a hyperlink is essentially a reference to other content, and not equivalent to the publication of the referenced content. With regards to the defamation aspect, it concluded that if accompanied by an endorsement of the referenced content, the hyperlink could be defamatory, but a mere reference to a third party's content through a hyperlink is just that, merely a reference.

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  11. David Eaves

    James – thank you for the comment – I'll confess I didn't know you could block someone from linking to your site (or at least block people following links from that computer).

    Reply
  12. James M. Burton

    “And hey, I don't want bigots or child molesters linking to my site either. But that doesn't mean I can legally prevent them”um, yes, you can legally prevent them. **** unless you mean you can't prevent them from linking under an existing statute or case law that specifically discusses blocking links – that is true ****a site administrator can set up an http request trap which examines the HTTP_REFERER URL and refuses connections by computers which have been referred by a specific URL.HTTP_REFERER it is a chunk of information used all the time to find web pages that are linking to pages that no longer exist. it is also used to stop bandwidth theft. i have a site on my server that has pictures of flowers and plants – other sites were embedding the pictures on their sites using an http request for the picture – and then placing their own content around my user's pictures – so we disallowed any HTTP request that was not the local host to call the picturesthe same kinds of techniques can be used to block contact with the server from specific URLs or blocks of IP addresses. it is part of the arsenal used to defend against denial of service attacks, spam assaults, and other such internet events.so, technically a link can be blocked. it is legal to block someone connecting with your site (pending other legal action by the linker…)however, there is no “link specific” legal recourse (using the courts) to stop someone from linking… sort ofa website owner could still take a party that links to their website to court and request an injunction to stop the link under various grounds – the same way someone could be taken to court to stop the use of a name, picture, or other material – the party could claim it was injurious to their image/repuration to have the outside link exist – like if white supremacists were linking to a streaming video or something like that – you get the idea

    Reply
  13. Glenn Dingwall

    There was a recent case in BC: Crookes v. Newton (http://www.canlii.org/en/bc/bcca/doc/2009/2009b…) that touched on the issue of whether or not a hyperlink is considered a publication. This was in the context of a defamation lawsuit. The court rightly concluded that a hyperlink is essentially a reference to other content, and not equivalent to the publication of the referenced content. With regards to the defamation aspect, it concluded that if accompanied by an endorsement of the referenced content, the hyperlink could be defamatory, but a mere reference to a third party's content through a hyperlink is just that, merely a reference.

    Reply
  14. David Eaves

    James – thank you for the comment – I'll confess I didn't know you could block someone from linking to your site (or at least block people following links from that computer).

    Reply

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