SCN: Links

[Steve]

x-no-archive: yes

========================

Is Linking Illegal?

(Carl S. Kaplan, NY Times)---A crucial aspect of online journalism is 
the ability to garnish articles with hyperlinks that instantly refer 
readers to Web sites related to newsworthy issues.  

But suppose one of those sites contains material alleged to be 
illegal--a pirated copy of an author’s book, perhaps, or an unlawful 
software program. Is the publisher who did the linking in hot water?  

The answer, according to legal papers recently filed by eight motion 
picture studios in a closely-watched federal case in Manhattan, is 
sometimes yes and sometimes no.  

Lawyers for the movie companies have asked U. S. District Judge 
Lewis A. Kaplan to order a Web publisher to stop linking to hundreds 
of sites carrying a piece of software—DeCSS--that they say threatens 
their industry with mass piracy and violates a federal law.  

Lawyers for the defendant, Eric Corley, who under the name 
Emmanuel Goldstein runs a print and Web publication, “2600: The 
Hacker Quarterly,” have sought to protect the act of linking. They 
claim that a link, in essence, tells someone where to go to get 
information. Thus it is a form of speech shielded by the First 
Amendment.  

Martin Garbus, a New York lawyer who is defending Corley, has 
also argued in papers that many other news organizations, 
including the Web sites of The New York Times, The San Jose 
Mercury News, the Associated Press and the Village Voice, have in 
the course of news articles about the case linked to sites that 
contain DeCSS or to sites that contain a catalog of links to DeCSS 
sites.  

The movie studios “must acknowledge that if the Linking Motion 
wins” then other, more mainstream news organizations “will be 
barred from linking too,” Garbus wrote in legal papers.  

The court’s decision, which is expected in the next week or two, will 
set an important precedent in the fast-moving area of linking law, 
according to legal experts.  

“Liability for a person’s linking to alleged wrongful content is really 
the next big thing” on the cyberlaw horizon, said Mark Sableman, a 
lawyer in St. Louis who specializes in new media law and who has 
written scholarly articles on the legal aspects of linking.  

Puzzles about linking have been raised recently in a few cases in 
the U.S., including a dispute in California where earlier this month a 
music Web site sued the recording industry to retain the ability to 
link to music files even though some of the linked-to sites may 
contain infringing material. Courts in Japan, Belgium and Sweden 
have also wrestled with linking cases in the past few months, said 
Sableman.  

In the New York lawsuit, Corley was accused of posting on his Web 
site the software program DeCSS, which, the movie studios claimed, 
allows users to bypass the security system of their DVD movie 
disks, thus opening the door, they say, to unauthorized viewing or 
piracy.  

Despite protests from Corley’s lawyers, who claimed that DeCSS is 
merely designed to help consumers play DVD movies on Linux 
operating systems, the court issued a preliminary injunction 
ordering Corley to take down DeCSS from his Web site. In issuing 
the order, Judge Kaplan found that it was likely that the posting of 
DeCSS violated the Digital Millennium Copyright Act of 1998, which 
makes it illegal for anyone to provide to the public or traffic in a 
device that is designed to circumvent a measure controlling access 
to a copyright-protected work.  

Corley immediately took the DeCSS code off his site. But in the 
following Weeks, he added more than 300 links from his site to 
other sites that have posted the software. In addition, his site 
encourages others to set up so-called mirror sites of DeCSS.  

Convinced that Corley was making an end-run around Judge 
Kaplan’s order, the movie studios asked the court to amend its 
initial ruling to include a ban on the defendant’s linking activity.  

In its most recent set of papers, the movie studios attempted to draw 
a clear distinction between Corley’s linking conduct, which they 
argued should be barred, and the linking conduct of other news 
organizations, which they said is proper.  

“[T]here is nothing illegal about linking as such,” wrote the lawyers 
for the studios. But there are two main differences between Corley’s 
links to DeCSS and other news organizations’ links to the program, 
they maintained. For one thing, Corley’s actions, taken as a whole, 
actively encouraged others to make copies of DeCSS in an effort to 
disseminate the controversial code, wrote the movie studio lawyers. 
As evidence, they pointed to Corley’s massive list of links and his 
apparent invitation to his readers to create mirror sites of DeCSS.  

Other news sites that might have linked to DeCSS did so incidentally 
as part of pure journalistic activity, argued the lawyers. “The 
difference, among other things, is . . . in [Corley’s] demonstrated 
continuing intent to traffic” in DeCSS, Charles Sims, a lawyer for the 
movie studios, said in an interview.  

“When the Times does an article about the drug situation in 
Manhattan, and mentions that drugs are available on the corner of 
85th Street and Amsterdam, that is different than people who are 
engaged in trafficking in drugs by sending people to buy drugs at 
different corners,” Sims said. “The difference is intent, among other 
things.” '  

In addition, Corley--unlike other news organizations--was already 
subject to an initial injunction barring his posting of DeCSS. Courts 
have wide latitude to enforce their orders. And in doing so, they may 
prohibit a defendant from doing something that might be permissible 
under different circumstances, Sims said.  

For his part, Garbus continued to deny that his client’s linking 
activity was improper. In an interview, he said that the initial court 
injunction barred posting DeCSS, not linking to it. And he argued that 
Corley’s “intent” or motivation in compiling his links was 
legitimate—to help Linux advocates find DeCSS in order to play DVDs 
on Linux machines. Garbus also noted that that no evidence has 
surfaced to date that demonstrates that DeCSS has been used by 
anyone to hack DVDs and make unauthorized copies.  

Dan L. Burk, a professor at the University of Minnesota’s law 
school, said he believed it was likely that Judge Kaplan would ban 
Corley’s links, pending a full trial on the legitimacy of DeCSS.  

“My take on this is that the movie studios are making the right 
argument. Not so much in terms of good linking and bad linking, but 
that the defendant has already been subject to the court’s authority, 
“said Burk. Under the circumstances, Corley has to keep a safe 
distance from improper conduct, he said.  

“It would be very strange if a court ordered a defendant not to sell a 
product in his store, but then the defendant was allowed to place a 
sign in the store window saying, ‘We can’t sell the item, but here’s 
where you can get it,’” said Burk.  

But Burk said he found the “intent” argument proffered by the movie 
studios to be a “bankrupt” theory.  

If Corley had originally linked to DeCSS and the movie studios went 
after him for his linking activity, they would not get a preliminary 
injunction, predicted Burk. “A link is essentially a citation,” he said. 
Telling someone where to find a thing cannot be a violation of the 
DMCA or the copyright law, Burk opined.  

“The only thing that is different between what [Corley] did and the 
rest of the press did is that Corley was already subject to the court’s 
authority,” Burk said.  

A trial in the NY DeCSS case is scheduled to begin on July 17.  

Copyright 2000 The New York Times Company





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