Sunday, 26 October 2003

Defend the Right to Link

If linking is at the heart of blogging, all bloggers should be up in arms at the cease and desist letter sent by e-voting (mis)manufacturer Diebold Elections Systems, Inc. to my friend Will Doherty in his capacity as Executive Director of the Online Policy Group.

Not having been following the news -- see the news releases from OPG and EFF -- closely enough, I thought this was just another case of corporations and the Digital Millenium Copyright Act run amok:

Diebold makes e-voting systems that rely on insecure Microsoft software components. Documents come to public attention that show that Diebold knew this, but didn't care. The documents are made available on the Web. Emulating the strategy of the Church of Scientology, Diebold tries to get the documents removed from the Web by claiming that news reports and commentaries reproducing the documents constitute copyright infringement. So far, so bad.

But that's not what the latest cease and desist letter is complaining about. Diebold's cease-and-desist letter is directed at OPG, a non-profit organization which provides "email list hosting, website hosting, domain registration, and colocation services ... to individuals and groups from communities that are underserved, underrepresented, or who face unfair bias, discrimination, or defamation online". Among the groups to which OPG provides such hosting services is IndyMedia .

Here's where things get weird: neither IndyMedia nor the OPG is accused of actually hosting any of the copyrighted Diebold menos. Diebold's complaint against IndyMedia is that IndyMedia's Web site included links pointing (at least temporarily) to some locations where allegedly copyright-infringing Diebold memos could be found. Diebold cliams that such links by IndyMedia constitute "information location tools". And, in turn, Diebold's complaint against OPG is thta, "The web page you are hosting clearly infringes Diebold's copyrights by providing information location tools that refer or link users of the web page to an online location containing infringing material or activity."

OPG's lawyer's at the Electronic Frontier Foundation have responded to Diebold, "Linking is not among the exclusive rights granted by the Copyright Act, 17 U.S.C. §106, and so cannot infringe any copyright Diebold might hold. Your allegations amount to a claim of tertiary liability; copyright law does not reach parties so far removed from a claimed infringement."

It's not clear exactly what statement. if any, is made by a link. Absent some specific statement in the text of the link, a link per se is less than a claim that anything at all exists at the target address of the link. In this case, most of the links in question pointed to nothing, since other ISP's, unlike OPG, kept taking down the complained-of Web pages. (Amazingly, and frighteningly, OPG is the only hosting provider not to enforce removal even of links to the complained-of Web pages.) At most, a link is a suggestion that the reader might find it rewarding to attempt to access whatever content might exist at the linked address.

So if there are crack and heroin dealers on the corner outside my window (there might be, but I don't know; I'm not at the window at the moment), and I step out on my stoop and say, "Look over there!", does that make me party to their crimes? And if my landlord fails to stop me from doing so, do they become party to my vicarious crime as well? It's tantamount to making it a crime to fail to prevent others from pointing at the emperor, or crting out, "Look!", when the emperor has no clothes.

Of course, if you're the Ford Motor Compnay, people don't need links to figure out that whatever you might want to say, they can find it at http://www.ford.com, or in most cases simply by entering "ford" in their Web browser. On the other hand, links are crucial for "individuals and groups from communities that are underserved, underrepresented, or who face unfair bias, discrimination, or defamation online" to connect with their online audience. That's who OPG serves, and that's why OPG's work, and this case, are so crucial to the future of free linking and free speech on the Internet.

Link | Posted by Edward on Sunday, 26 October 2003, 16:33 ( 4:33 PM) | TrackBack (0)
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