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.

By Scott Rosenberg

Jun 23, 1999 | 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.

Next Page: EBay gets into the "Hands off -- it's mine!" game

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