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Re: Backlash vs. Third-Party Annotations from MS Smart Tags

From: Wendy Seltzer <wendy@seltzer.com>
Date: Mon, 18 Jun 2001 15:05:25 -0400
Message-Id: <>
To: <www-annotation@w3.org>
The "smart tags" furor has been interesting -- with many people seemingly 
opposed just because it's Microsoft.  I'd argue that there is no copyright 
claim against a website annotator (either the technology or the person who 
adds and views notes).  Although some copyright maximalists would disagree, 
I'd argue that a reader has the right to combine two sources of information 
in his web browser just as he could write notes in a book's 
margins.   Annotation is akin to viewing the work under different lighting, 
not creating a derivative work.

If Microsoft is sloppy enough or too overbearing, there might be an unfair 
competition claim, but that would depend more on the business practices 
than the technology.

At 01:47 PM 6/18/01 -0400, Jon Garfunkel wrote:
>At 01:24 PM 6/17/2001 -0500, Wesley M. Felter wrote:
> >BTW, I don't think it's accurate to say that annotation can't be
> >prevented. Annotation software developers can only fight off so many
> >lawsuits before they go bankrupt.
>Huh? Have their been any annotation lawsuits? By whom, over what? I still
>think that the "grafitti" complaint is spurrious, aside from the cases
>where offensive or libelous content is annotated on.

If anyone knows of any lawsuits or threat letters, I'd be very interested 
to hear about them.  I might have better luck applying my legal than 
programming skills.

>The courts, at least in the U.S., just don't allow a technology to be
>killed. If the technology has some social value, some vendors work with the
>gov to meet the guidelines established for its use.

I wish I could be so sanguine!  The Second and Ninth Circuits (DeCSS and 
Napster) seem well on their way to declaring that certain technologies have 
no social value, or are illegal notwithstanding possible valuable 
uses.  Litigation can be very expensive, and many developers seem to settle 
rather than pushing their claims through the courts, so the bargaining is 
usually between the "upstart innovator / pirate" and the established 
industry, not with the government.


Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
Received on Monday, 18 June 2001 15:00:06 UTC

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