s law professors love to say, consider the following hypothetical case:
There are two Web sites. The first one, an online news report, publishes an article about copyright infringement that featuring a hyperlink at its end which leads readers to a site the article’s publisher knows contains unlawful material -- an illegal software code, perhaps, or a pirated music file or an unauthorized copy of a secret religious text.
Meanwhile, the publisher of the second Web site, a lone crusader who believes that all information should be freely available to everyone, publishes an article with the exact same link.
Question: May a court place the two publishers in the scales and reasonably conclude that one is engaging in lawful linking activity while the other has perpetrated a legal no-no?
In a largely overlooked portion of a recent decision, a federal judge has indicated the answer is, yes indeed. According to Judge Lewis A. Kaplan of the U.S. District Court for the Southern District, in Manhattan, a link can be bad or good. It mainly turns on whether the linker's intent is laudable or not.
Depending on whom you talk to, Judge Kaplan's reasoning is either a swipe at the First Amendment, which may protect Internet links as a form of expression, or it is a reasonable rule of thumb that balances the rights of speakers and intellectual property owners in the digital age.
Still, at least a few things seem clear, according to legal experts. For one thing, Judge Kaplan's attempt to distinguish between good and bad links is novel.
"We've never seen this kind of test before," said Dan L. Burk, an Internet law scholar and professor at the University of Minnesota's law school.
Martin Garbus, a lawyer who represents Corley, said in an interview that he will shortly file a notice of appeal of Judge Kaplan's entire ruling to the U.S. Court of Appeal for the Second Circuit. He said he was hopeful the appeals court would hear the case on a fast-track basis.
After the decision, Corley removed the hyperlinks from his site, but continued to publish the web addresses of the sites where the decoding software can be found.
Provided it survives appeal, Judge Kaplan’s ruling could serve as an important guiding light for other judges, Burk said. That's because questions about the liability associated with linking to allegedly wrongful material are beginning to crop up in court cases - and the stakes are high.
The World Wide Web is a network built upon links. So a legal rule that unnecessarily inhibits linking could stifle the development of the Web. On the other hand, a rule that tolerates overly permissive linking to infringing material could encourage and support mass piracy.
Judge Kaplan's stab at a solution to the linking puzzle as part of his August 17th decision in the highly-publicized DeCSS case, which pitted eight movie studios against Eric Corley, who, under the name Emmanuel Goldstein, runs a print and Web publication, "2600: The Hacker Quarterly."
The movie studios sued Corley to stop him from posting or linking to hundreds of sites carrying a piece of software – DeCSS – which the studios claim allows users to decode digital versatile discs (DVDs). They claimed the software code, invented by hackers in Europe opens the door to copying and unauthorized viewing of movies.
Judge Kaplan, in an 89-page decision, agreed with the movie studios, ruling that Corley's posting of the DeCSS code violated a portion of a federal law. That law, the Digital Millennium Copyright Act of 1998, 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.
Significantly, Judge Kaplan also agreed with the studios’ argument that Corley's decision to post hundreds of links to sites containing the DeCSS software also violated the anti-trafficking provision of the copyright act. Corley's posting and linking "amount to very much the same thing," wrote Judge Kaplan. A few days after his opinion, he issued a permanent injunction barring Corley from posting DeCSS code or linking to sites containing DeCSS code.
In the portion of his opinion that dealt with the linking issue, Judge Kaplan conceded that he had a "genuine concern" that a blanket legal rule barring Corley's linking might trigger a "chilling effect" that would inhibit Web site operators from posting links. Such a chilling effect in the context of links -- which contain mixed elements of expression and functionality -- would raise "grave constitutional concerns," he said.
In addition, Judge Kaplan expressed the worry that assigning liability based on a link to site which happened to contain DeCSS in the midst of other perfectly appropriate content could be "overkill."
Seeking to avoid such pitfalls, Judge Kaplan established what he considered to be a very strict test. He said there may be no injunction against, nor liability for, linking to a site containing content considered illegal under the Digital Millennium Copyright Act unless it can be proven by clear and convincing evidence that those responsible for the link (1) knew at the relevant time that the offending material was on the linked-to site; (2) knew that the offending material may not be legally offered, and (3) created or maintained the link "for the purpose" of disseminating that illegal technology.
A "strong requirement of that forbidden purpose is an essential prerequisite to any liability for linking," Judge Kaplan wrote. He added in a footnote that courts will look at all relevant circumstances when evaluating a link, including whether a publisher advertises that link as a means of providing an unlawful product or directly "deep links" to a page containing only the offending material.
Kaplan's views on linking are troubling to at least some experts in Internet law. Eugene Volokh, a law professor at UCLA's law school, said that the history of the First Amendment shows that legal rules proscribing speech on the basis of the speaker's intent may seem promising, but in practice are often not sufficiently protective of speech. That's because people can be successfully sued or prosecuted even though it’s not clear they intended other people to violate a law, Volokh said.
"In these kinds of cases, it's easy for a plaintiff to say that a defendant intended some consequence," Volokh said. "Maybe the defendant did intend something and maybe he didn't. It's up to a jury to decide, and who knows what they'll do. So this leads to a classic chilling effect and potentially a very serious one," he said.
With respect to Internet linking, "all it would take is one or two publicized lawsuits and people may start to get antsy," Volokh said. "Maybe some online news publishers like The New York Times wouldn't get cowed, but others may become more hesitant" to link, he said.
Mark Lemley, an intellectual property expert who teaches at the University of California at Berkeley's law school, said another problem with Judge Kaplan's legal standard on linking is that it is intrusive. It subjects "a whole bunch of people to potential liability and inquiries about why they did this thing," he said. He added that the ruling will encourage intellectual property owners to file more cases against linkers and issue "cease and desist" letters demanding that links be removed.
Other experts, however, applauded Judge Kaplan's linking analysis. Bruce Keller, a New York lawyer who specializes in intellectual property law and who has represented The New York Times in legal disputes, said that Judge Kaplan "did what he could to create a workable safety valve."
"If you are a First Amendment purist it may leave you a little uncomfortable but the First Amendment does not condone clear violations of intellectual property rights," he said.
Richard Raysman, a New York-based lawyer who specializes in e-commerce, and who has written about linking, said Judge Kaplan's reliance on the notion of intent to distinguish between good and bad links was reasonable. "It's a fine distinction and it could cause some serious problems if misused but it's a fair distinction," he said.
Since Judge Kaplan's ruling, the Motion Picture Association of America, acting on behalf of Hollywood movie studios, has sent out about 100 e-mails to Web site operators asking them to cease posting or linking to DeCSS, according to Gregory P. Goeckner, a vice president and deputy general counsel of the MPAA. He said the e-mail recipients were carefully chosen, based on "evidence that there was a deliberate intent to provide DeCSS." He added that the MPAA didn't send e-mails to the operators of every site currently linking to DeCSS.
