Who owns the New York Times bestseller list?

On the Net, fighting to hang on to every last chunk of intellectual property is a recipe for stagnation and failure.

Published June 23, 1999 4:00PM (EDT)

Obviously, the New York Times owns the New York Times bestseller list. Right?

Well, on the Internet, everything is just a little more complicated.

Last month Amazon.com set out to outflank its chief rival, barnesandnoble.com, by announcing a 50 percent discount on all New York Times bestsellers. The move seemed timed to steal some of the thunder of the IPO for Barnes & Noble's online bookstore. B&N quickly matched the Amazon discount. Then lawyers for the New York Times -- which has an online bookselling partnership with B&N (as Salon.com does) -- demanded that Amazon stop posting the Times' list. Amazon countered by suing the Times in federal court.

Now there is precious little the Times could -- or would -- do to stop your neighborhood bookstore from clipping the bestseller list from the back of the Times Book Review and posting it on the wall with a "SALE" sign over a row of discounted books. But on the Net, people go a little crazy trying to nail down their intellectual property rights -- mostly because the definition of those rights remains so much in flux on this new terrain.

The utopian visionaries of the Internet's youth may have been a little giddy with their battle cry that "information wants to be free," but they had a point. Intellectual property is a fuzzy concept at best, but in the offline world, lawyers have spent decades hashing out its principles. The rise of the Net means that all the old battles get to be refought -- and some of the old principles no longer make sense.

Who's right in the matter of Amazon.com vs. the New York Times? At first blush, Amazon looks pretty reasonable: Unlike B&N, it is not using the New York Times' Gothic logo, and it is listing the bestsellers alphabetically rather than by rank.

All it is doing is saying to its customers, "These books are New York Times bestsellers, and we will give you a discount for them." Does the New York Times own the fact that "White Oleander" is a New York Times bestseller this week? If so, did I need the newspaper's permission to publish the previous sentence? What if I proceed in this paragraph to name all the other books on the list?

But what if I did so every week? At some point, the pragmatic tradition of "fair use" fades into the much more suspect zone of "rip-off." Furthermore, if you think of the Times' bestseller tally as essentially a database rather than a simple list, then presenting it on the Web becomes a little more questionable.

Then again, the data that the Times compiles comes from booksellers around the country; if they stopped providing their stats, the list would vanish. In other words, there's a cozy long-term quid pro quo in this industry: The bookstores give the Times the information it needs to compile its list, and the Times lets the bookstores use the bestseller list as a marketing tool. Everybody's happy -- until they move online, where the Times' own double roles, as compiler-of-list and partner-to-megabookstore, seem to conflict.

I'm still inclined to side with Amazon. But more important, the Times' response -- sic lawyers on the miscreants! -- is woefully unimaginative. As the Web corrodes old rules, it creates new opportunities, too. Say you're the Times exec charged with responding to Amazon: Just imagine what else you could do.

What if the New York Times approached Amazon and said, "Look, you want to use our bestseller list? Fine! You've got an awful lot of traffic -- why don't you just link to our New York Times Book Review site every time you mention our name, and we can call it a day?"

An executive mired in old ways of thinking might recoil from such a proposal, which on the face of it would seem to further entwine the fortunes of Amazon and the New York Times rather than keeping them discrete and distinct. But it's in the Web's nature to blur boundaries. If the Times' partners at Barnes & Noble found such links upsetting, all the Times has to point out is that, as a result of such an arrangement, at least some Amazon customers would be likely to stray onto the Times site -- where they would be exposed to a full array of Barnes & Noble "buy" buttons.

My point is that the Times could have looked at Amazon's use of the bestseller list as an opportunity for another partnership and a chance to extend its reach. Rather than sending "cease and desist" letters, it could be growing its traffic.

It's not only "old media" companies that are making this kind of "hands off -- it's mine!" mistake. Over at eBay, the online auction giant, they've been calling out the lawyers, too.

EBay is unhappy that its users are taking the "feedback" credentials earned on its site, where auction participants "rate" one another's trustworthiness, and posting them on other auction sites elsewhere on the Web. The feedback data is proprietary, eBay says; the company, not the user, owns it.

Based on a clause in eBay's user agreement, the company is technically right -- but looking at the issue both from a user's perspective and from smart business thinking, it's way wrong. EBay is behaving as if its users are stealing its property by posting their feedback ratings on other auction sites. Instead, eBay should simply ask any site that posts eBay feedback info to link back to eBay with each re-post of a user's rating.

Rather than viewing its users as potential thieves, eBay could employ them as potential marketers. This kind of approach is pretty obvious to Web-savvy businesses these days; eBay's failure to grasp it is a sign that the pioneering auction house -- having grown too big or too quickly -- may be losing its touch.

At this point in Net history it should be almost too obvious to say this, but the lesson still demands repeating: In the online world, you can't make users do what they don't want to do just because it happens to be convenient for your business. You have to let them do what they want to do -- then align your business in such a way that what they want to do benefits you, too.

The latest enterprise to suffer for failing to follow this principle is Divx -- Circuit City's foolish scheme to create a digital video format that metered usage of home movie watching. Divx evoked little actual customer enthusiasm and lots of howls of protest and outrage; all it had going for it was a fervent wish on the part of Circuit City and its Hollywood partners that people would adopt it. When Circuit City pulled the plug on Divx last week, there were few mourners among the general public.

Divx won't be the last technology the industry tries to shove down consumers' throats. As MP3, the online music technology that millions of users have embraced, continues its rise, look for more Divx-style flops from a music industry desperate to squash MP3 and substitute some other scheme more to its liking.

If the recording industry has any brains it will rethink its position. Instead of trying to push back against the river of online human behavior, it should be thinking, "How can we turn this to our advantage?" It shouldn't take too long to come up with some creative ideas.

As technology keeps redefining the nature of owning information, fighting to defend every last chunk of intellectual property on the Net may look like a sensible strategy. But in the long run, it's like trying to hold on to a snowball in the sun.

By Scott Rosenberg

Salon co-founder Scott Rosenberg is director of MediaBugs.org. He is the author of "Say Everything" and Dreaming in Code and blogs at Wordyard.com.

MORE FROM Scott Rosenberg

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Amazon.com Intellectual Property The New York Times