The courts have determined that WEB links, e.g. "http://..." are no protected under the Fair Use provisions of the Copyright law. This means that sites can not point to other sites without worrying whether they will be sued for either Copyright infringements or violation of the DMCA.
It is assumed that this is based on the "active" character of the electronic reference as compared to the passive character of a normal printed reference, and thus the WEB author, when they link to another page is more like an author who includes the entire target content, thus violating the copyright of the target owner, as opposed to the print reference that is not an inclusion of the target material.
Note: I am biased for protecting electronic reference under the "Fair Use" and Freedom of Speech rights, and will be looking for other points of view.
Proposed: Freedom to Link (rev 0.3) bill
In general: Copyright law may apply to the source and destination of copyright protected informaiton, but not to other intermediat channels. These intermediate channels, e.g. Electronic Links, Discussion boards, Communication networks are to be included in the Fair Use and No Prior Constraint conditions and thus protected against copyright infringement.
Electronic references, such as "http" links are included in the safe harbor of Fair Use as defined by the Copyright laws, and thus are not an infringement on the copyrights of the referred to copyright protected material.
Groups are not be liable to prior constraint, and that E-mail is a valid expression of free speech. This act in no way prevents actions against individuals who place illegal material on bulletin boards, or against moderators who are notified that specific postings are illegal on their moderated group, or E-mail senders who have been notified that their E-mail is unwanted or specifically illegal.
Communication channels, such as backbone networks and applications programs, such as browsers are similarly protected even if they carry or display copyright protected material. The originating site may be responsible for is copyright infringement, and the ISP who directly connects such a site, as legally proven, may be required to either disconnect the infringing site or turn his identity over to the court, but is neither label for carrying the traffic, or for any other action until served by a legally judged soupiness.
Until recently it has been held that Notes, Footnotes, and References to Copyright protected documents were examples of Fair Use, and thus protected speech. This protection for electronic reference has been removed and Web page publishers have been sued successfully for referring to copyright and to other material. This means that the average person who may build a web page, as well as the professional who wants to discuss a specific topic may be prevented from doing that if they use the most useful Web tool, the Electronic reference, "http://..." link to illustrate his topic.
I personally believe that these decisions should be overturned by the Supreme Court both as clearly covered under the "Fair Use" exception of the Copyright law and more generally under the Free Speech clauses of the Constitution, and Either due to a miss interpretation, or an improperly written section of the Digital Millennium Copyright Act (DMCA). In order to save time, money, and allow the Web users to proceed without the chilling effect until this decision is made, and to ensure that this Reference use is protected, I am suggesting that Congress state the these Electronic References be defined as protected.
The MPAA in "Hyperlinks FAQ" argues that the use of these Electronic references that point to illegal information, DeCSS, are not protected as the author "has no more right to distribute DeCSS in this way than he would to distribute keys to your house and a map because he did not like your furniture".
Note: There seem to be 3 different types of links that are being considered as being illegal:
- "Clear and Present danger" -- This type of link points to a site/page that is illegal, e.g. one that might describe the way to build a bomb or how to crack the DVD encoding. Thus by linking to an illegal destination page the author of the source page is assisting illegal activate. -- Successfully made illegal by the MPAA suit for the DeCSS link
- "Included Frame copying" -- This type of link is used to show copyright protected material in a sub-frame, with the source page material surrounding the designation material. Thus the destination page looks as though it is part of the source material, e.g. part of the source site. --
- "Copyright linking" -- This type of link is the standard link to a copyright protected page. When the user "clicks" on the link his browser will be transported to the new page. --
Note: as far as link types, functionally there seem to also be 3 types of references, and one might consider that they differ in their legality.
- Text, "Dead" references: e.g. a text string that describes the location of information but contains no automatic way to get to that information. E.g.
"The New York Times is at: http://www.nytimes.com"
- "Manual" hypertext references: e.g. a normal http link that points to information in a way that the reader can jump" to it by clicking on it, e.g.
"Click here to go to The New York Times"
- Included "Image" references: e.g. a link that causes the browses to include the remote page or information in the original page, e.g.:
New York Times Image:
- (07/02/02) EFF decided not to Seek Supreme Court Review in DVD Case (Including linking )
- (07/03/02) Sent FTL proposal (rev 0.1), to "Fred@eff.org, email@example.com" for initial comment.
July 17, 2005 20:04