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Re: "Right to Link" In the News

From: Harry Halpin <hhalpin@ibiblio.org>
Date: Thu, 19 Sep 2013 16:11:49 +0200
Message-ID: <CAE1ny+7o7HG0siCrYWa_LQfiDjmscPD6Cb_qNjOXSfbr8CTEUQ@mail.gmail.com>
To: Konstantinov Sergey <twirl@yandex-team.ru>
Cc: "ashok.malhotra@oracle.com" <ashok.malhotra@oracle.com>, "Appelquist Daniel (UK)" <daniel.appelquist@telefonica.com>, www-tag <www-tag@w3.org>, Wendy Seltzer <wseltzer@w3.org>
See following email for analysis.

 If a public announce of data that is already publically hosted on the
Web is illegal (posting "a link to copyrighted work" is same as
"copying copyrighted work" then any law (national or international)
upholds such a shoddy law, then it should be changed to be updated not
only with 21st century, but with common sense. In this case, the TAG
should mention to relevant legal bodies that technically their law is
incompatible with the Web.

In particular on the Barrett Brown case, he posted a link to a chat
room to a limited audience as well, not intentionally broadcasting
credit card numbers the public at large. That would be the equivalent
of listening to copyrighted music in your living room and claiming
that everyone in the whole world had access to the copyrighted music
and thus one must pay giant licensing fees to listen to music in your
living room.

On Thu, Sep 19, 2013 at 4:01 PM, Konstantinov Sergey
<twirl@yandex-team.ru> wrote:
> Oh, I like philosophying too :) But my note is not about philosophycal aspects of linking and copyright, but practical ones.
> See comments below.
>
> 19.09.2013, 17:39, "Harry Halpin" <hhalpin@ibiblio.org>:
>> Note that we did a little philosophy paper on this, the key is
>> hyperlinks use URIs, but URIs are ambitionally ambiguous because URIs
>> allow *access* and *reference*.
>>
>> Due to this dual nature between access and reference, a link _may_
>> allow access. Yet a URI does not have to allow access, i.e. the
>> document may produce a 404. A URI can also be used without access, it
>> can be used to just refer, as is often the case with Sematic Web
>> technologies.
>>
>> It's the same with names. If I say "Hey Daniel Appelquist, come over
>> here and have a coffee", the name "Daniel Appelquist" only works *if*
>> Daniel is nearby, hears me, and can walk over. Natural language names
>> started as ways of accessing people in small groups, but today are
>> primarily referential. Think of URIs lie proper names.
>>
>> When does a URI allow access? Obviously, access *only* happens when a
>> user clicks and the refererred site does not provide any access
>> control itself. So, posting a URI is referential primarily, not access
>> itself. Access is the fault of the user's clicking and the server
>> holding the date.
>
> That is, in my opinion, weak line of defence.
> Storing a copyrighted work on a public server does not violate author's right. And even making a copyrighted work available to the whole web to download doesn't do that. What violates the right is _public announce_. So effectively _link_ violates copyright, not the carelessness of the public service maintainer.
>
>>
>> Philosophical argumentation wrt Semantic Web (a bit dated) below:
>>
>> [1] http://www.ibiblio.org/hhalpin/homepage/publications/indefenseofambiguity.html
>>
>> On Thu, Sep 19, 2013 at 12:49 PM, Konstantinov Sergey
>> <twirl@yandex-team.ru> wrote:
>>
>>>  After our last telcon I spent some time with legal codes and formulated some thoughts on linking & copyright. I hope you find them useful.
>>>
>>>  1. Applicable law.
>>>  Though the jurisdiction problem really exists, in fact, copyright law is quite the same in many countries.
>>>  Digital copyright principles were established in World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) in 1996. All WIPO members adopted the WCT as a local law - for example, DMCA is US implementation of the WCT.
>>>
>>>  2. WCT (and other treaties it incorporates, like Berne Convention) describes a set of rights which are exclusevily belong to authors (or copyright holders) and a **complete** list of exceptions to them.
>>>
>>>  3. Article 8 of the WCT states, that "authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."
>>>
>>>  As we see, WCT undoubtfully states that the right of making a work available to the public BY ANY MEANS belongs to author exclusively. Publishing hyperlink to a work definitely makes it available in a sense of WCT as it provides "a way that members of the public may access these works from a place and at a time individually chosen by them". In that sense linking is NOT the same as referring: when you're referring a work, you state its name and catalogue number; when you link it, you state WHERE to found it. URN of a work doesn't break author's exclusive right, but URL does. The only question here is whether you'd be found guilty of knowingly violating the copyright or not -- it depends whether you'd be able to prove "fair use" or not. The link itself is illegal in any case.
>>>
>>>  So, my (sad) conclusion is: in general, linking *may* violate the copyright in terms of current law. In my view it is useless to try to protect "right of linking" under current law since current copyright law IS really treating the existence of the Web as a whole.
>>>
>>>  15.09.2013, 20:31, "Ashok Malhotra" <ashok.malhotra@oracle.com>:
>>>>  Hi Dan:
>>>>  For some reason I cannot find the article even though I have a NY Times subscription!
>>>>  Could you send the title of the article so that I could search for it?
>>>>
>>>>  The blog I wrote about Linking http://malhotrasahib.blogspot.com/2013/07/linking-and-law.html
>>>>  goes a bit further in making the analogy between linking and free speech.
>>>>
>>>>  This work stalled because we did not get a clear idea of the message the W3C wanted to send and
>>>>  the form it should be sent.  If we can get some direction on this, I'm happy to do more work on it.
>>>>  All the best, Ashok
>>>>
>>>>  On 9/10/2013 3:53 AM, Appelquist Daniel (UK) wrote:
>>>>>   Related to the TAG's work on publishing and linking on the Web, I read the
>>>>>   following with some alarm in this morning's paper:
>>>>>
>>>>>   http://nyti.ms/17Qdf8H
>>>>>
>>>>>   #RightToLink is trending on Twitter in relation to this.
>>>>>
>>>>>   Wendy – the TAG made an attempt to tackle this space in order to provide
>>>>>   fodder for a "friend of the court" document for cases such as this. The
>>>>>   result was the following:
>>>>>
>>>>>   http://www.w3.org/TR/publishing-linking/
>>>>>
>>>>>   …which unfortunately did not go far enough (in my view) in articulating a
>>>>>   connection between linking and freedom of expression.
>>>>>
>>>>>   In this case reported in the NY Times, considering the "chilling effect"
>>>>>   of the legal restriction of linking, does it make sense for W3C to weigh
>>>>>   in, and if so could we adapt some of the thinking in this document to do
>>>>>   so, from a perspective of clarifying Web architecture.
>>>>>
>>>>>   Thanks,
>>>>>   Dan Appelquist
>>>>>   TAG Co-Chair
>>>  --
>>>  Konstantinov Sergey
>>>  Yandex Maps API Development Team Lead
>>>  http://api.yandex.com/maps/
>
> --
> Konstantinov Sergey
> Yandex Maps API Development Team Lead
> http://api.yandex.com/maps/
Received on Thursday, 19 September 2013 14:12:16 UTC

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