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New Internet services called "shopping agents" save consumers time by quickly performing comparison price searches for everything from books to computer hardware. But their popularity with the public has drawn copyright lawsuits from merchants who don’t like the competitive heat generated by search engines that instantaneously comb millions of pages of Internet data to identify the best prices for virtually anything. Despite these pending lawsuits, the competitive effect of the Internet appears to be irreversible. Gone are the days when a consumer had to visit or at least telephone several stores to compare prices and quality. Store Web sites advertising goods and prices make it easy for consumers to quickly compare one merchant's offerings against those of its competitors. This effect is escalating with the advent of shopping agent sites such as MySimon, Shopping Guide, and Shopping Search. These Internet search engines make comparison shopping easier than ever: consumers don’t even have to visit merchant Web sites to compare prices: shopping "bots," short for "shopping robots," do the searching and deliver a list of places to buy the desired item, ranked by price. Among the first vendors to object to bot sites were the big Web auction sites, which owe their own popularity to their ability to help consumers comparison shop for millions of products sold by individuals and small retailers. The world's biggest such site, EBay, sued auction shopping agent Bidder's Edge to prevent that Web site from including products offered on EBay in its product price comparisons. EBay used a different tactic against auction shopping agent AuctionWatch, and erected technical barriers to prevent AuctionWatch from accessing data about products advertised for sale on EBay. Ironically, EBay's efforts to keep its products off the comparison auction sites has prompted the federal Department of Justice to investigate whether EBay has run afoul of prohibitions on anti-competitive business tactics. Like the big auction sites, shopping agents earn income by festooning their sites with paid advertising, or by charging sales commissions or listing fees. Because bot users are searching for specific products, shopping agent sites have a unique ability to sell product-specific advertising: when a consumer searches for canoes, paid ads for canoes will also pop up. But adversaries claim comparison shopping sites unfairly profit on information that doesn’t belong to them. EBay and others contend the display of product descriptions and prices gleaned from their home pages amounts to copyright infringement because the product information is reproduced without permission. Abstracted sites worry that the bot sites will cause shoppers to select another merchant without ever looking at the surveyed Web sites. This reduces site hits, shrinks sales, and threatens advertising revenues. In their defense, the bot sites counter that comparison product listings are "fair use," and therefore permitted. Federal copyright laws protect original works of authorship from being copied without permission. This gives authors exclusive rights to sell their original work for a limited time, thereby generating an incentive for the creation of new work. But copyright protections are restricted by the "fair use doctrine," which holds that reproduction of limited portions of copyrighted works without permission does not violate copyright law. Fair use balances a copyright owner's interest in profiting from his or her original work against the public interest furthered by the free exchange of information and ideas. While the bot sites claim they are only engaging in fair use, their detractors say they profit from the wholesale copying of significant information from other Web sites, in violation of copyright laws. The debate over what constitutes fair use on the Internet encompasses not only the bot sites, but everything from news sites that display content copied from other media outlets, to Web sites that display other sites inside a frame that screens out ads from the framed Web site. So many established copyright principles are challenged by emerging Internet technology that some observers question whether existing laws are adequate to decide the new "cyber law" disputes. Contemporary courts can solve these new legal conundrums if they adhere to the fundamental principle that individual profit must be balanced with the public interest. One of the first court cases to evaluate fair use by Internet Web sites was recently decided by a federal district court judge in Santa Ana. Judge Gary L. Taylor held in photographer Leslie A. Kelly's suit against Ditto.com, that Ditto.com's reproduction of miniature copies of photographs from Kelly's site was "fair use." In concluding that Ditto.com's summary information was within the "fair use" exception to copyright protections, the court cited the public interest served by the usefulness of search engines to navigate the Internet. Photographer Kelly says he will appeal, and the decision in that case and numerous others will help clarify the new principles of cyber law. Pamela Lawton Wilson is an attorney whose practice includes land use, political and media law matters at the civil firm of Sullivan Wertz McDade & Wallace in Downtown San Diego. |
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