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NEWSPAPER GETS UK COURT TO ISSUE INTERIM INTERDICT (PRELIM. INJUNCTION) TO PREVENT COMPETITOR'S LINKS TO ITS WEB SITE
Short Chronology of events
* 23rd November 1995 -- The Shetland News went on-line as a daily,
Internet only newsmagazine.
* 30th December 1995 -- Hit rate now 2,000 per day, as people log on from around the world.
* 29th February 1996 -- The Shetland Times put some of their weekly stories on-line.
* 21st March 1996 -- Shetland News averaging 2,700 hits per day, Times average 320 hits per day.
* March - Present -- Shetland News expanded to over 200 pages of news, comment, tourist information, environmental information, features, humour, and several major advertisers signed up.
* 13th October 1996 -- Shetland News pointed readers to some Shetland Times stories, using hypertext links. Daily hit rate average at time was Shetland News 5,000 and Shetland Times 400.
* 16th October 1996 -- Shetland News hits remaining steady, but Shetland Times up to 600 per day.
* 15th October 1996 -- Fax sent by Mr Wishart, demanding immediate withdrawal of links to his site.
* 24th October 1996 -- Interim Interdict (injunction) granted in the Court of Session, Edinburgh, to prevent The Shetland News putting up HTML links to The Shetland Times, until such time as a court hearing examine the issue.
* 4th November 1996 -- The National Union of Journalists agree to take up the court case on behalf of their member of 20 years standing, Dr. Jonathan Wills.
COPY OF THE ACTUAL INTERDICT
24th October 1996 Lord Hamilton
The Lord Ordinary having resumed consideration of the Cause allows the Summons to be amended as proposed at the Bar; ad interim interdicts the Defenders, their employees, agents or anyone acting on their behalf or with their authority from (1.) storing in any medium by electronic means or otherwise copying or (2.) including in any service operated by the Defenders on the internet any headline, text or photograph from any edition of "The Shetland Times" newspaper or the Pursuers' internet web site WWW.Shetland-Times.Co. UK; finds the Defenders liable to the Pursuers in the expenses of today's and yesterday's hearings and remits an account thereof, when lodged, to the Auditor of Court to tax.
/s/ A. C. Hamilton
Lord Hamilton raises a very interesting question if we can't even store material electronically, because that is how a computer looks at web pages, and then you can click back and forward without reloading them. The computer stores them as you are looking at them, and then you can continue to look at them off-line. Does the judgment mean that no-one can use the software that we all use, because that is how it operates??
That means, strictly speaking, that we can't even look at their website on-line, because the web browser software stores the page on our computers as we look at it.
Where does that end?? Does it affect everyone, or only us?? In other words, could anyone be in contempt of the interdict if they even look at their site??
Technical director, The Shetland News
STATEMENT BY ROBERT WISHART, MANAGING DIRECTOR OF THE SHETLAND TIMES, ON 25TH OCTOBER 1996.
"Recent statements by Dr Jonathan Wills are an attempt to lay down a smoke-screen over the issues.
"We took action to prevent him presenting our news stories as part of his web site. These stories are gathered by professional staff at considerable expense to the company.
"Put simply, this is an argument over whether a publisher on the internet retains copyright in any material once it goes "on-line". My view is that by incorporating our copyright material into his news service he infringes our copyright. The technical process by which this is achieved is irrelevant.
"How Dr Wills arrives at the conclusion that the ruling makes the internet in its present form illegal I don't know. There is no restriction on "free" access to the internet and we would be perfectly happy with a proper link to our home page so that readers can have access to our reports in their intended context.
"Our successful action at the Court of Session demonstrates that this is by no means a "frivolous" action as claimed by Dr Wills. On the contrary it is a case which will be of vital interest to every publisher on the internet. Had our action failed it would have meant that the Copyright, Designs and Patents Act 1988 would no longer apply to any material published on the internet.
"I have every confidence that if Dr Wills wishes to pursue the matter we will receive support from other publishers on the internet.
"It is quite clear that Shetland News were driven to this action because they were unable to provide a proper news service on their own. In the meantime we will continue to develop our internet site as a quality product.
"Dr Wills' attempts to use his web site to generate nuisance mail and phone calls is exactly the sort of infantile action I have come to expect from him. We really should be arguing about the principles involved. As a part-time journalist himself one would have thought he would have some understanding of the protection which copyright laws offer to writers and publishers.
"Further statements on any further outbursts by Dr Wills may or may not
be forthcoming depending on how ridiculous they become. Watch this
from THE SHETLAND TIMES -- 25TH OCTOBER 1996.
"The Shetland Times has won an interim interdict banning Bressay-based journalist Jonathan Wills from including the paper's stories for use on his own Internet news service.
"Lord Hamilton yesterday effectively upheld a complaint in the Court of Session made by The Shetland Times that Dr Will's use of stories written by The Shetland Times' reporters was a breach of copyright under the Designs and Patents Act 1988.
"Managing director of The Shetland Times Robert Wishart had written to Dr Wills asking him to immediately withdraw headlines, news, photographs and other material from his Internet publication The Shetland News which had been incorporated directly from the paper's own web site.
"In a letter to Dr Wills, Mr Wishart wrote: "As this is a clear infringement of our copyright we must ask for the immediate withdrawal of this. We would be obliged if you could respond to this as soon as possible ... failing which we will be forced to take further action."
"However, Dr Wills accused Mr Wishart of being a "silly billy" and said: "At no time have we infringed your undisputed copyright, nor have we made any use whatsoever of your material in our own pages.
""We don't need your written permission to put up links to your site, or to any other. It would be nice, once you're feeling better, if you could reciprocate - rather than threaten to retaliate."
"In effect Lord Hamilton upheld The Shetland Times' complaint that Dr Wills' use of material from the paper was in breach of copyright rules and regulations.
"Dr Wills immediately accused The Shetland Times of trying to block free access to the Internet and said in a written statement: "I respect the law and will abide by the terms of the interdict when it is formally served.
""I am confident that, when the court studies the full facts of this case, it will reject The Shetland Times' application and award full costs against them for what I can only describe as a frivolous, vexatious and malicious legal action, clearly designed to cripple our small, new company financially and to gain a monopoly of Internet news publishing in Shetland."
"Mr Wishart welcomed Lord Hamilton's decision and maintained that The Shetland News had no right to copy, publish, reproduce or transmit the company's copyright material in hard copy, electronic media, or in any other way.
""Obviously I'm delighted with this common-sense decision. That the Shetland News should be reduced to passing off our journalists' work as part of their web site demonstrates how difficult it is for a part-time freelance to provide a comprehensive news service," said Mr Wishart.
"He added: "We shall continue to develop our Internet site as a quality product and this ruling demonstrates our legal right to protect it. It's a shame those involved with Shetland News refused our request to desist from this practice and made legal action necessary."
"It is not yet known if Dr Wills will appeal against the decision."
SOME NEWS STORIES
INTERNET PUBLISHER DOESN'T WANT THE HITS
The Shetland News, 16th October 1996
In a highly unusual move, The Shetland News has been told by the publisher of The Shetland Times to stop putting up links to pages in the on-line edition of Shetland's weekly printed newspaper.
Most Internet publishers are desperate to log as many hits as they can, but in a fax last night (Tuesday) to Dr Jonathan Wills, editor of The Shetland News, Robert Wishart, managing director of The Shetland Times Ltd, said:
'It has been brought to my attention that you are making use of headlines, news, photographs and other material from The Shetland Times and our 'On Line' service.
'As this is a clear infringement of our copyright we must ask for the immediate withdrawal of this and your written undertaking not to use any such material in the future without first obtaining our written permission.
'We would be obliged if you could respond to this as soon as possible and no later than noon tomorrow (Wednesday) failing which we will be forced to take further action in this matter.'
Choking back tears of mirth, Dr Wills replied as follows: 'Thank you so much for your fax message, which has given me no end of fun. It's good to see that you have not lost your legendary sense of humour after all these years.
'Just in case there is the teeniest chance that you were being serious, let me explain a few points of which you, as a relative newcomer to the Internet publishing business, may not be aware.
'The principle of the Internet is free access. We have no turnstile where we vet or charge readers. Nor do you. What we have done, are doing and will continue to do is direct our readers to your website on those occasions when your six editorial staff manage to come up with a story which our single member of staff has either missed or not got around to writing. You are in good company. We do the same for The Herald, CNN, Le Monde, La Stampa and dozens of other Internet news publishers. Take a look at the Icelandic volcano site, for example: it puts into perspective your own little explosion this evening (which I am sure you will regret and have a quiet giggle over, once you calm down and realise what a silly billy you've been).
'At no time have we infringed your undisputed copyright, nor have we made any use whatsoever of your material in our own pages. If we did, we would pay you our normal, single-use, electronic reproduction fees at NUJ rates. Where we give a free link to a Shetland Times story which we think would interest our readers, we send them straight to your very own page, not to one of ours. When they get there they are looking at The Shetland Times, not at The Shetland News. They know this because the page carries your own banner and copyright notice. To make doubly sure that the reader is not confused, we make no alterations to your pages at all. A moment's reflection will tell you that we couldn't possibly do that, anyway. We also leave untouched any pictures you may be carrying. Because they are of such low technical quality, there is no chance that our readers could possibly imagine they were still looking at the Shetland News site.
'We don't need your written permission to put up links to your site, or to any other. You ought to be jolly pleased, because we are bringing you hundreds of readers a day whom you wouldn't otherwise have. In fact, we would normally charge someone for the privilege of such links from our busy site but, in the interests of our readers and out of a feeling of solidarity with your complementary WWW operation, we wouldn't dream of sending you an invoice. You see, whatever you feel about us, we don't regard you as a competitor.
'It would be nice, once you're feeling better, if you could reciprocate - rather than threaten to retaliate. But I'll quite understand if you don't do that right away. These things take time, after all. I know it's difficult to understand but the WWW is quite different from print media. Different rules apply and at first they are surprising.
'In the meantime, if you have any pages which you feel are not getting the hits they deserve, don't hesitate to send me another fax message (or even an e-mail) and I'll see if I can arrange a link for you. No, really, I will. You see, I'm not cross with you at all.
SHETLAND TIMES WINS LEGAL BAN AGAINST THE SHETLAND NEWS
The Shetland News, 24/10/96
Statement by Dr Jonathan Wills, editor of The Shetland News and managing director of the Internet publishers, Zetnews Ltd:
'This morning (THURS), in an unprecedented attempt to block free access to the Internet, The Shetland Times Ltd obtained interim interdict in the Court of Session, preventing The Shetland News from directing its readers to the pages of the Internet edition of The Shetland Times.
'The Shetland Times Ltd alleges breach of copyright. In fact, no such breach occurs when we put up free links from our pages to theirs. What we have been doing is bringing The Shetland Times readers which otherwise they would not have had. It is the equivalent of the publisher of The Guardian directing readers to an interesting article in The Independent. I thought we were doing them a favour and expected them to reciprocate.
'I respect the law and will abide by the terms of the interdict when it is formally served. In place of the former links to The Shetland Times, The Shetland News will carry a message informing our readers that their freedom of choice has been legally censored at the instigation of Robert Wishart, managing director of The Shetland Times Ltd. I am sure readers will draw their own conclusions.
'I am confident that, when the court studies the full facts of this case, it will reject The Shetland Times' application and award full costs against them for what I can only describe as a frivolous, vexatious and malicious legal action, clearly designed to cripple our small, new company financially and to gain a monopoly of Internet news publishing in Shetland.
'The managing director of The Shetland Times must know that the basic principle of the Internet is free access. This access is via links from one website to another. By attempting to block such links, he is in effect saying that the Internet in its present form is illegal. This is a test case and, if upheld, will undoubtedly require a new Act of Parliament to let the Internet continue in its present form in the UK.
'The hilarious side of it is that The Shetland Times is the first Internet news publisher I have heard of to turn away readers and attempt to publish in secret. Most are desperate to get as many 'hits' as they can.
'What is not so amusing is that, as The Shetland Times Ltd also knows, I cannot afford to defend this action. The preposterous claim that The Shetland News has infringed the copyright of The Shetland Times Ltd is a flimsy veil for a personal spite which has existed since Mr Wishart was obliged to settle out of court after illegally dismissing me as editor of The Shetland Times in January 1990.
'The Shetland Times also implies that I and Zetnews Ltd have no right to
use the title 'The Shetland News'. In fact, permission to use this title
was given to me in 1990 by the late Dr Mortimer Manson, the last editor
of the print newspaper of the same name, which closed in 1963.'
NATIONAL PUBLICITY FOR INTERNET TEST CASE
The Shetland News, 25th October 1996
The attempt by The Shetland Times Ltd to have the basis of the Internet declared illegal is drawing national media attention today (FRI).
Following yesterday's decision by Lord Hamilton in the Court of Session at Edinburgh, The Shetland News has been forced to remove all links to the pages of The Shetland Times on-line edition. Our links to other WWW news sites are unaffected and remain in place.
Shetland Times managing director Robert Wishart told the court that links from The Shetland News breached his copyright and hindered his efforts to attract advertising to his pages.
BBC Radio One and other national media have featured the affair, which is seen as a test case and is believed to be the first time a UK Internet publisher has asked the courts to stop people making links to a public domain website.
Lord Hamilton's ruling means that The Shetland News is banned from making such links for several months, until a full hearing is held into the issues raised by the case.
Legal expenses could run well above five thousand pounds. Shetland News editor Jonathan Wills, speaking today from Orkney, where he is on his annual ten day holiday, said he planned to launch a fighting fund:
'We are building up a new, small business which, while it is paying its way, does not yet earn the directors and shareholders any income. There's no way we can pay lawyers to take this case the full distance, which of course is why The Shetland Times took this legal action.
'They know that if they lose at the full hearing, as they certainly will, they could still win financially by forcing us out of business and leaving them with a monopoly. I am appealing to everyone who believes in the free exchange of information on the Internet to help us fight this case.
'A special bank account is being set up and details will be published early next week when I return from my family holiday, which Mr Wishart's vindictive court action has now ruined.'
Demonstrating that he still does not understand how Internet links work, Mr Wishart today repeated his claim that a link from The Shetland News to Shetland Times pages was in breach of copyright. He also said The Shetland News had attempted to 'pass off' Shetland Times reporters' work as part of The Shetland News website.
Dr Wills immediately responded by asking Mr Wishart to withdraw, correct and apologise for 'this defamatory statement'.
Unlike the daily, 250-page Shetland News, which routinely achieves hit
rates many times higher than The Shetland Times on-line edition, Mr
Wishart has not yet attracted any significant paid advertising since he
launched an electronic edition in February, three months after The
Shetland News pioneered the idea.
SHETLAND TIMES REJECTS PEACE OFFER (TEST CASE LOOMS ON INTERNET COPYRIGHT )
The Shetland News, 29th October 1996
The Shetland Times last night (Monday) failed to respond to a peace offer from Zetnews Ltd, publishers of The Shetland News, in an unprecedented legal dispute over copyright on the Internet.
Dr Jonathan Wills, Zetnews managing director and editor of The Shetland News - Britain's first local Internet paper - said he was 'saddened but not surprised' at the apparent rejection of what he described as a 'generous' offer, designed to spare The Shetland Times the 'embarrassment and expense' of a lengthy test case in Scotland's supreme civil court, the Court of Session.
Last Thursday Lord Hamilton granted an interim interdict preventing The Shetland News from making Internet links from its World Wide Web pages, to pages operated by The Shetland Times.
It may be several months before the case for full interdict is heard.
The Shetland Times allege that the free links, provided at the expense of The Shetland News, constitute infringement of copyright.
Last night (Friday) Dr Wills said: 'The Shetland Times have misinterpreted Lord Hamilton's judgment as ''in effect'' favouring their arguments. In fact, the interim interdict merely puts the situation back to what it was before The Shetland Times made their complaint. That is normal court procedure. The court has yet to decide the issue.
'When it does, I am confident we will win. The practice of linking to other Internet publications is universal and, indeed, the very basis of the World Wide Web. This is a test case because, if The Shetland Times were to succeed in their frivolous and vindictive action, there would have to be a new Act of Parliament allowing the Internet to continue to function in this country, in its present form.
'We have never made or kept copies of The Shetland Times on-line edition. So the question of copyright does not arise. There is no case to answer. All we have done is direct our readers to The Shetland Times on-line edition, thus doing everyone a favour. It is like someone putting a poster on a shop window and then drawing customers' attention to someone else's poster on the other side of the window.'
The Shetland News was founded in November last year and has already attracted over a million readers in more than 60 countries. Its 250 pages carry paid advertising from organisations and companies, including P&O Ferries and Shetland Islands Tourism. Readership of The Shetland Times electronic edition has not been disclosed but the paper's web pages have not attracted any significant paid advertising since the venture started in February this year.
The offer to settle the dispute was made in a letter from Dr Wills to The Shetland Times Ltd on Sunday. The full text was as follows:
'In the hope of settling the current dispute between us promptly, economically and to the satisfaction of all concerned, I hereby make the following offer to the directors of The Shetland Times Ltd, on behalf of myself and Zetnews Ltd (publishers of The Shetland News).
'If The Shetland Times Ltd will undertake to apply immediately to the Court of Session to lift the interim interdict, and will also agree to pay all my and Zetnews Ltd's vouchered legal expenses to date, I will undertake to:
'1 Instruct my solicitors and counsel to take no action in the matter of the financial damages suffered by myself and Zetnews as a result of The Shetland Times Ltd s proceedings, nor in the matter of the prima facie defamation of myself, recently published by your managing director.
'2 Ensure that all references to this affair are permanently removed from the pages of The Shetland News.
'3 Make no further public reference to the details of the case, while reserving the right to comment on the general issue of copyright and the Internet.
'4 Ensure that, whenever a link is provided in future from the pages of The Shetland News to pages of The Shetland Times on-line edition, the link will carry a legend saying 'This is a link to a Shetland Times copyright report'. I am willing to discuss a mutually agreed alternative wording if this is not acceptable to you.
'5 Ensure that, in accordance with our invariable practice to date, no Shetland Times on-line pages, logos, icons, photographs, artwork, text or other editorial material are ever stored in electronic form on our website or in our computers, except where such material has to be stored for short periods, for use by such web browser software as we employ.
'I believe this to be a generous and fair offer which will save you the expense and embarrassment of a protracted court case, from which The Shetland Times Ltd is most unlikely to emerge with credit. It will also save the local and wider Internet community considerable distress and dislocation.
' My proposal has the added advantage of maintaining diverse electronic news media in Shetland, providing readers with wider choice and, on those occasions when we do make links to your site in future, of considerably enhancing your own readership at no expense to yourselves.
'I ask for your response in writing, by fax or messenger, by 5pm tomorrow, Monday 28th October.
'If your response is favourable, I am content that this should remain a private letter and that we should agree a joint public statement on the following lines: Following discussions between The Shetland Times Ltd and Zetnews Ltd, the directors of both companies have agreed an amicable solution to the current dispute between them. No further public comment on the matter will be made by either company.
'If you do not agree to this offer, I shall feel obliged to publish it in full (so that our readers and customers are made aware that I and Zetnews Ltd have tried to settle this amicably) and to instruct my solicitors to prepare a detailed and vigorous defence of your action for interdict. Your own solicitors may already have alerted you to the startling misinterpretation which your managing director appears to have placed upon Lord Hamilton s grant of interim interdict.
'I look forward to hearing from you.
Managing director, Zetnews Ltd'
Excerpted from material from The Shetland News
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