The Supreme Court of Canada recently rendered a decision on a lawsuit in which the plaintiff accused the defendant of defamation for linking to third-party content the plaintiff believed to be defamatory.
The plaintiff argued that linking constitutes republication, and that a link to defamatory content was therefore defamatory.
The Court decided that a link is a reference, not a publication, "analogous to a footnote or a card index in a library and should not be found to constitute republication of the defamation."
The decision also states: "A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists."
The court concluded that putting such a legal burden on hyperlinks "would have the effect of seriously restricting the flow of information and, as a result, freedom of expression."
Obviously this was a case specifically related to defamation, not copyright infringement, but it does seem to suggest a precedent with respect to the argument that hyperlinking constitutes republication for copyright purposes.
It seems so ridiculous that we still need to say things like "analogous to a footnote or a card index". A link is a link and its a common and standard enough part of our world to be considered as its own thing.
How long do we have to play this stupid game? A link is like a reference to a site that's like a book that's hosted on something like a library which makes this behavior kind of like stealing my left shoe. It's like trying to regulate highways based on laws about herding pigs in a national forest.
The existing law deals with X set of events. In order to adjudicate on this event a, different in form but one could argue not function from X, one must first relate it to similar elements in X. X is the corpus of existing law, a is the case at hand. This is, in a nutshell, part what the courts are for - refining and logically extending the law.
Sure, if we had laws about books and we needed to to make a judgement about pamphlets, that works. But we can't just pretend that we are extending some sort of logical rules from first principals. A link or an embedded video is not like a footnote in any way that matters.
> A link or an embedded video is not like a footnote in any way that matters.
I would argue that for the purpose of copyright infringement, a link is exactly like a footnote - it's a reference to an external document. It just happens that hypertext makes it much easier for the reader to look up the reference.
This is actually legit. The DMCA only provides protection for service providers, not individuals. There is also no differentiation between embedding and linking to content and hosting the copyrighted content yourself.
A couple cases where this might be relevant:
* A site which allows users to embed videos could get a DMCA takedown request and would be obligated to remove the embed. In the case of YouTube videos it hasn't really been an issue so far because it makes more sense for the copyright owner to go directly to YouTube.
* If you have a blog where you post lots of embedded videos of pirated movies/shows, you could be sued as if you had uploaded and hosted the infringing videos.
The DMCA may not protect individuals, but what part of copyright law criminalizes (or provides civil penalties for) pointing people in a particular overseas direction? And if it does, how does one reconcile that with the ridiculousness of the notion that linking is the same as copying?
I hate to lose rep but I must say that I can see the point where embedded content is concerned. Hear me out.
Certainly I understand the technical argument being made against the MPAA here. But, when I provide the descriptor (embedded video) at the cost of surrounding said video with ads then I am certainly attempting to profit from the inclusion of the video. If said content is copyrighted I can understand the copyright holder being displeased with others trying to profit from my work.
To be fair the average user (not average HN user) never says "I saw this awesome video via myVidster (site mentioned in article) though the content was hosted by and embedded from ...". The content is almost always associated to where it is found.
That said I wholeheartedly think the MPAA and RIAA need to be drug into the 21st century, even if it is kicking and screaming like a three old in cereal aisle of Wal-Mart.
But, when I provide the descriptor (embedded video) at the cost of surrounding said video with ads then I am certainly attempting to profit from the inclusion of the video. If said content is copyrighted I can understand the copyright holder being displeased with others trying to profit from my work.
So what? There are already laws to deal with taking care of that at the source. Don't make excuses for the lazy and evil.
Not to be a cynic, but is this anything new? It seems to me that these are the 'reasons' the MPAA thinks TPB and other torrent sites are (supposed to be) illegal.
You know how geeks try to find technical solutions to laws, like the zero-knowledge pastebin on HN now? MPAA lawyers try to find legal solutions to disruptive technology.
Actually technology is the best way to solve cultural and political problems. The invention of the printing press solved (or contributed to solving) many such problems, like the tyranny of the catholic church. Technology also had a huge role in the Arab spring protests -- Facebook and plain old tv.
This is quite obviously untrue. There is no reason to assume that if people need a technical solution for problem X, X can involve house-kitchen-'n-garden solutions but can't involve solutions for cultural or political problems.
Most of the triggers for massive social change since the agricultural revolution have been new technologies, as while you may have choices, the choices you have are restricted by the tools available to you.
So the introduction of a new set of technologies into a culture can massively alter the social dynamics.
The washing machine alone, completely transformed the social landscape of the industrialised countries.
The MPAA has become very aware that it is in a position that could go quite south for them at any moment, so they are quite literally desperate to get any "data" to support their positions, up to and including re-contextualizing/redefining core concepts of how technology is perceived and used.
They were a client of a company I worked for in a past life, and they were fairly out of touch, but seemed to be aware enough that they were not going to "win" by pure technology alone (they grokked that DRM had limited, if any, real value). They are a policy farm at root, and they are going to leverage that as strongly as possible from here on out.
My honest suggestion is a scorched Earth campaign against them. Follow the money and start real GOTV/support candidates who refuse to give in to the nonsense.
Yes, I understand the argument about where linked content could be perceived as violation based on pecuniary interest (but as stated elsewhere, a reference to a source is not a source, even if it provides the full access to that source), but I personally see that as a tenuous position and certainly lacks merit overall in terms of the generally inchoate state of copyright law these days.
This seems to be aimed at those sites showing "videos from Korea/Japan/China/etc" which work by embedding. I have a Japanese friend who loves watching these while he's away from home, so now he won't be able to watch his favourite Japanese TV dramas, as there is no alternative.
The plaintiff argued that linking constitutes republication, and that a link to defamatory content was therefore defamatory.
The Court decided that a link is a reference, not a publication, "analogous to a footnote or a card index in a library and should not be found to constitute republication of the defamation."
The decision also states: "A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists."
The court concluded that putting such a legal burden on hyperlinks "would have the effect of seriously restricting the flow of information and, as a result, freedom of expression."
Obviously this was a case specifically related to defamation, not copyright infringement, but it does seem to suggest a precedent with respect to the argument that hyperlinking constitutes republication for copyright purposes.