Is Linking Illegal?

June 16, 2000 - 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.

"There 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.


By CARL S. KAPLAN
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Copyright 2000 The New York Times Company

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