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The United States Court of Appeals for the Second Circuit in Manhattan, in its ruling on the DeCSS case (which found, in favor of the Motion Picture Association of America, that Eric Corley could not legally link to sites publishing software code (DeCSS) designed to break the copy-protection on DVDs), apparently set a precedent by which other links to websites containing illegal material could themselves be found illegal.
This article, from today's New York Times, lays out the basics:
The court began by observing that a hyperlink is not merely a high-tech footnote or reference card that conveys information to a reader concerning the location of additional content. Rather, the court said, a hyperlink contains a speech component and an additional "nonspeech" component — some computer code — that has the functional capacity to bring the content of the linked Web page to the user's computer screen at the click of a mouse.
From this, it would appear that publishing the address itself (in plain text) is not illegal — even though, in fact, including the link in HTML merely saves a reader the bother of cutting and pasting. It's an odd distinction, though I suppose it makes sense under a strict, legal interpretation (since the protections against censoring free speech are unique).
What troubles me most about this ruling isn't the threat it poses to journalistic freedom, however, but what implications it might have for the use of links in general. The judge, according to the Times, set out three criteria for a link (to DeCSS, in this case) to be illegal:
There had to be clear and convincing evidence that the person responsible for the link (a) knew at the time that the offending technology is on the linked-to site, (b) knew that the offending technology is illegal under the D.M.C.A., and (c) created or maintained the link for the "purpose" of disseminating the tainted code.
This is well and good, if the courts stick to it. But it's also entirely unenforcable, as far as I can see. A clever pirate could simply omit any direct mention of the illegal technology, and there would be no "clear and convincing evidence" of his knowledge of it.
And if any law against such links is ever to be effective, it cannot avoid becoming a threat to innocent web publishers. Such a law would have to somehow claim that a link to an illegal technology is itself illegal, in virtue of its distributing illegal material alone (and independently of its publisher's purported knowledge or intentions).
But because web content is not static, a link that is legal one day might be made illegal the next, should the site it links to have added illegal content in the meantime. Which would effectively mean no one with a website could afford to risk linking to an unknown publisher's site. And it isn't exactly clear what this would mean for search engines and web directories, either.
Is there an alternative? I'm not sure. I wonder, though, if it might not be sufficient to prosecute those who attempt to profit off such illegal material, or providing access thereto. As far as I know, the copying of music (mostly onto cassettes, but also onto CD-Rs) has cost the music industry a negligible sum. Piracy only becomes noticably costly to an industry, I believe, when the cost per unit rises above a certain threshold, as it does with much software. Below that threshold, too substantial a distribution mechanism is required for a pirate to make any real profit — and such a distribution mechanism will inevitably draw the attention of the authorities, and an end to the piracy (and the hopes of any profits).
Of course, big business and big government wouldn't mind terribly if the little guy couldn't run his little website the way he wanted to. But the judge was clearly reluctant to rule against the freedom to publish in general, and it's hard to see the U.S. justice system squelching a host of independent publishers for what, in the long run, seems like a minimal (at best) protection of some businesses' interests.
December 14, 2001 4:12 PM
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Copyright ©2001-2003 Matt Pfeffer