SCN: Links

[Steve]

x-no-archive: yes

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(Carl S. Kaplan, NY Times)---Free speech advocates are worried 
that a recent federal appeals decision could have a chilling effect 
on online journalists who use hyperlinks to direct readers to 
relevant, newsworthy sites that contain illegal material.  

Even more troubling, the critics say, may be an emerging double 
standard in the way courts treat traditional print publishers and 
their online offshoots, especially when it concerns printing a 
controversial address in a newspaper vs. linking to it from a Web 
page.  

The recent, high-level judicial guidance on the law of linking came 
about in a relatively overlooked part of a widely-reported decision 
two weeks ago in the so-called " DeCSS" case.  

In that November 28th decision, the United States Court of 
Appeals for the Second Circuit in Manhattan ruled in favor of the 
Motion Picture Association of America in its lawsuit against Eric 
Corley. The earlier injunction barred Eric Corley and his company, 
2600 Enterprises, Inc., from posting a software code designed to 
crack DVD-movie copy protection on their Web site and from 
knowingly linking their Web site to any other site on which the 
software, called DeCSS, is posted.  

In the decision penned by Judge Jon O. Newman, the appeals 
court held that the injunction did not violate the First Amendment 
rights of Corley, a publisher of a magazine and affiliated Web site 
devoted to news about hackers.  

In addition, the court rejected Corley's various constitutional 
challenges to the Digital Millennium Copyright Act of 1998, a 
federal law that served as the legal basis for the injunction. The 
D.M.C.A., in part, prohibits an individual from "trafficking" in or 
providing to others a computer program that is designed to 
circumvent the copy-protection scheme shielding a copyrighted 
work.  

It was in the latter part of the decision, which dealt with Corley's 
links to the DeCSS code, that the federal appeals court for the first 
time cautiously proceeded to place Internet hyperlinks under a 
legal microscope.  

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.  

It is this instantaneous, functional nature of the hyperlink that 
distinguishes it from its non-electronic print cousin, said the court, 
because a hyperlink to digital material can result in "instantaneous 
worldwide distribution [of prohibited material] before any 
preventative measures can be taken."  

Because the D.M.C.A.'s anti-trafficking provision is targeted at the 
functional, instantaneous aspect of Corley's hyperlinks, continued 
the court, the regulation is "content neutral" and thus is subject to a 
relaxed level of judicial scrutiny.  

In reaching his conclusion on the propriety of the linking injunction, 
Judge Newman noted that the lower court judge, Lewis Kaplan, in 
"an especially carefully considered portion" of his ruling, expressed 
some concern that an overly broad ban against linking to illegal 
material under the D.M.C.A. would risk impairing freedom of 
expression. For that reason, Judge Kaplan formulated a three-part 
legal test for illegal links. 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.  

When Judge Kaplan issued his opinion last year, some advocates 
of press freedom complained that his test was not sufficiently 
protective of reporters. After all, they said, an online reporter who 
linked to the source of a story about illegal software code, for 
example, obviously would have created the link for the "purpose" of 
disseminating information about the code to the public.  

If some press advocates were hopeful that the Second Circuit 
would reject Judge Kaplan's linking test, they were wrong. For 
although Judge Newman did not explicitly embrace the three-part 
scheme, he did not say that it is wrong. Indeed, he said that it 
might be more "rigorous" than necessary.  

Jane Kirtley, a law professor at the University of Minnesota who 
specializes in press issues, and who co-authored a friend-of-the-
court brief in the DeCSS case, said that the Second Circuit's 
decision regarding linking places journalists in an "unsettled" 
position.  

"The short answer is that now journalists may have a problem with 
hyperlinking," she said. "The court found a qualitative difference 
between a newspaper printing an address and a Web site linking 
to an address," she said.  

"Maybe the Second Circuit found comfort in Judge Kaplan's test, 
but I don't," Kirtley added, referring to the what she perceived to be 
a danger that the test might force the government or litigants to 
probe the motives of journalists in a linking case. "What difference 
does the intent make?" said Kirtley. "Under the First Amendment, 
intent should be irrelevant."  

Cindy A. Cohn, a lawyer with the Electronic Frontier Foundation, a 
civil liberties group that represented Corley on appeal, predicted 
that the Second Circuit's decision on linking would pressure online 
journalists and publishers to stop employing hyperlinks in some 
circumstances.  

At the beginning of the DeCSS controversy, she said, some online 
reporters who wrote stories about Corley linked directly or 
indirectly to sites that contained DeCSS code. "How many link to 
DeCSS now?" she asked. "Not many. I suspect they think they 
could get themselves in trouble. Hopefully we won't see this trend 
grow, but there's a real risk" that it will, she said.  

Yochai Benkler, a law professor at N.Y.U. who also submitted a 
friend-of-the-court brief in the DeCSS case, arguing that the 
D.M.C.A. is unconstitutional, said that he believed the Second 
Circuit's decision on the linking issue is "vague" and does not 
contain concrete guidance for reporters. "The problem is that 
nobody knows what the rules are, and in the context of the First 
Amendment that kind of vagueness is a real problem," he said. "It 
results in a tremendous chilling effect."  

But not everyone thinks that the appeals decision is so broad that 
it can potentially serve as a precedent to restrict the general use of 
hyperlinking. Charles Sims, a partner at the New York-based law 
firm Proskauer Rose and the lead counsel for the eight Hollywood 
movie studios that filed suit against Corley, said that the appeals 
court's linking ruling was "relatively narrow" when viewed in the 
context of the case's facts and circumstances.  

Sims observed that Corley did not link to DeCSS once or twice but 
had posted hundreds of links to the code. In addition, he said, 
Corley wrote on his page of links statements that encouraged 
readers to go to the linked-to sites and make copies of DeCSS. 
Finally, Corley added many links to DeCSS on his Web site after 
the lower court issued a preliminary injunction barring him from 
posting the code.  

"I think clearly [the appeals court] found that this guy, without any 
question, was providing and intending to provide DeCSS to the 
public" via his links, said Sims. "I don't think there is anything in this 
opinion that suggests that a journalist who provides links to further 
information on any subject is going to be found to have committed" 
an anti-trafficking violation, he added.  

Sims acknowledged that there is no explicit paragraph in the 
appeals opinion that draws a bright line between lawful and 
unlawful links to prohibited material. "But I'm very confident that the 
Second Circuit thought it through and concluded that this 
injunction did not threaten free speech," he said.  

Mark Sableman, a partner at the St. Louis law firm Thompson 
Coburn, and author of an upcoming article on link law in the 
Berkeley Technology Law Journal, said in an interview that it was 
"fair judgment" under the facts for the appeals court to view 
Corley's links as an illegal means of actively encouraging the 
downloading and use of the tainted DeCSS software.  

In the inevitable future case concerning a mere "media 
informational link" to prohibited material, Sableman said that he is 
hopeful a court will regard that linking activity as more akin to pure 
speech and thus deserving of the highest protection under the 
constitution.  


Copyright 2001 The New York Times Company





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