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Should Linking be Immune to Lawsuit?
Posted by Ernest Miller on Tuesday, December 10 @ 12:03:43 EST File Sharing
Julie Hilden writes a column for Findlaw's Writ proposing categorical statutory immunity for hyperlinks (Should Linking be Immune from Lawsuits? The Case In Favor of a Federal Statutory Immunity For Linkers). I agree that courts have gone too far in finding liability for hyperlinks. However, I don't think that broad statutory immunity is necessarily the right answer.

For one thing, we should ask what exactly is a hyperlink. What distinguishes a hyperlink from a URL, for example? Is this distinction legally cognizable? In one sense, a hyperlink is an instruction to a browser on how to display and what actions to perform in regard to a URL. But if a hyperlink is a form of instruction to a program, what is the limitation of what a hyperlink can perform? When does a hyperlink become something more than a pointer to information and become a computer program performing an action?

This question of definition is not an idle one. The Internet is a wonderful thing, but it is far more complicated than Hilden's argument takes into account. As our world is increasingly more wired, the concept of "linking" is going to change dramatically. Linking will be more than simple "anchor" tags. Consequently, I think it is premature to call for broad statutory immunity.

 
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Re: Should Linking be Immune to Lawsuit? (Score: 1, Interesting)
by Anonymous on Tuesday, December 10 @ 13:50:47 EST
A link is a statement, not an instruction. The difference is crucial and has been part of the Web architecture since the beginning.

http://bits.are.notabug.com/


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Re: Problems problems... (Score: 1)
by rancor on Tuesday, December 10 @ 16:26:44 EST
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Unfortunately, you run into more and more trouble as you try (with no result) to make meaningful (even in the case of legal meaning) distinction between "data” and "code". Yes, "simple" links are "pointers" or "references" that connect a source to a destination. However, what about "links" that require JavaScript or posted data? Also, in the future links probably will increase in sophistication. Already "simple" links are NOT just the URL that you enter. Your browser also includes additional information such as the “user agent”, and information about what types of objects it is willing to receive, not to mention cookies. Any meaningful definition needs to have meaning and applicability in the future.

An alternative view of a “hyperlink” is a function call. The URL (without arguments) is the name of the function being called, and the arguments are, well, arguments. In this context, even a static HTML page is “code” (and after all code is speech), with potential calls to other code. What code gets called is determined by the user of the browser.

I think that a more productive approach to addressing this issue is to legally recognize code as speech, and protected under the 1st amendment. Then linking is like footnotes with power, and also protected under the 1st amendment.

Other arguments will result in meaningless gobbledy-gook.

My 2 cents.

- Jim Powers



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Re: Should Linking be Immune to Lawsuit? (Score: 2, Insighful)
by HowardGilbert on Wednesday, December 11 @ 13:51:22 EST
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This issue is simply another verison of the question posed by Universal v Reimerdes. The Second Circuit found that "code" is both a constitutionally protected form of speech and an apparatus for doing something. Whether the First Amendment applied depended on whether the objection was to the "content" or to the "operation". In that case, DeCSS was found to be illegal because it performed an illegal operation (defeating copy protection) and was not being challenged for expressing an idea.
A hyperlink by itself performs no operation. Niether on the other hand does it express an idea of the form that the First Amendment would protect. As a result, must probably be judged as a form of expression, but like advertisments and other forms of commercial speech it is unlikely to get strong constitutional protection as an expression in itself.
If clicking the hyperlink sends a URL to a background Web Service that closes a relay and blows up a building, I don't think anyone is going to get away with a claim that this was protected free speech.
If the URL links to an illegal copy of protected media, and if clicking the hyperlink starts an illegal download of the media, then again there is no expression of an idea and the page author is probably facilitating infringement (like Napster).
If the URL is a link to instructions on how to build a bomb, plus detailed diagrams of five abortion clinics and suggestions of where to place the bomb to achieve maximum effect, then there is incidentally an expression of an idea here, and First Amendment considerations apply but are overwhelmed by other obvious factors.
It seems to me that the status of links is already well settled in the law and any new blanket exemption is inappropriate. If not, then we need a much clearer statement of any remaining ambiguity.


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Re: Should Linking be Immune to Lawsuit? (Score: 0)
by Anonymous on Thursday, December 12 @ 02:57:19 EST
As a practical matter, if web site maintainers feel threatened by legal action as a result of hyperlinks to other sites, they will simply remove the HREF, leaving the unadorned URL. Initially users who want to visit this URL will have to copy and paste it back into the browser, but then browsers will start recognizing plain text that looks like a URL, just as many email programs already do. At that point the plain text URL will, from the user's perspective, be the same as a hyperlink, and we'll be back to square one.


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Re: Should Linking be Immune to Lawsuit? (Score: 0)
by Anonymous on Thursday, December 12 @ 09:08:41 EST
Hey, if anyone is still following this thread, what gives with the new "URL in brackets" convention on LawMeme?

Is this some kind of reaction to aforementioned legal issues perchance?


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