The funny thing about all of this is that if this firm would have simply come clean…. totally, at launch, I doubt that webmasters would be this pissed off about things.

If Rand would have stated what he did yesterday:

“we are roguish”

at the beginning, we all would have accepted his decision to go to the dark side and left it at that. His marketing ploy of misleading people into thinking they could “easily” opt out was pathetic. Because of this, someone out there might try the copyright thing. I think both Michael and Bill have good points on both sides, but I highly doubt trying would backfire for all reasons given.

I still stand by my assertion that the collection taken as a whole has never been tested in court, do comprise a significant portion the “structure” of a website, and should fall under the protection offered by copyright.

It has never been tested, that part is true… but it would be a far cry from frivolous to feel you have the right to keep someone else from scraping it without permission and then reselling it.

I wouldn’t say this lightly because I’ve used the DMCA quite a few times and I know what my lawyer said it could and couldn’t be used for, but I’m no lawyer and suggest you consult with one quickly before you do something as silly as you suggest above.

There were no cache pages displayed, not even a complete snippet, just page titles and anchor text which the legal minds claim isn’t copyrightable, per the Chilling Effects FAQ and quite a few other places I’ve read.

The only way you would have a valid claim is if you hyperlinked an entire article of substantial text and then they displayed that entire article as anchor text, that simply wouldn’t fly as fair use.

If you want to continue and play the DMCA card which doesn’t apply whatsoever in this case, don’t be surprised when it blows up in your face.

Some of the reasons that Google and other search engines can get away with displaying copyrighted material have alot to do with the fact that they give webmasters the means to remove or block their content (which trust me IS copyrighted) via robots.txt and other means.

From the chilling effects FAQ:

“Question: Does copyright protect words or short phrases?

Answer: No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be “original works of authorship” under the Copyright Act. Names may be protected by trademark, in some instances. See the Trademark FAQ for more information.”

So if you feel compelled to roll the dice, don’t say I didn’t warn you when your bank account gets transferred to the Linkscape development fund.

BTW, if someone else follows this advice and gets in trouble, guess who’s next in line for posting this advice?

I think you may want to revisit the whole “we’ve got that covered” line of thinking, Rand, and maybe not make the intellectual leap that just because a free search engine has fair use over certain things that your commercial product (that in your head, anyways, does something similar) must fall into the same category.