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Re: "Right to Link" In the News

From: Konstantinov Sergey <twirl@yandex-team.ru>
Date: Sun, 22 Sep 2013 13:29:21 +0400
To: "ashok.malhotra@oracle.com" <ashok.malhotra@oracle.com>
Cc: David Booth <david@dbooth.org>, "Appelquist Daniel (UK)" <daniel.appelquist@telefonica.com>, www-tag <www-tag@w3.org>, Wendy Seltzer <wseltzer@w3.org>
Message-Id: <31481379842161@webcorp1f.yandex-team.ru>
I read this article very carefully before posting my opinion. In short, I completely agree with this text: linking a public service cannot violate service owners rights.
But the question is: is it possible to violate third-party rights while linking a public service? The answer is "yes", as far as I understand.

Let us divide three situations:
1) you are linking a service which violates copyrigt itself (that's the case of Richard O'Dwyer)
2) you are linking a service which owns exclusive rights to some content but didn't publish it (you got the link by mistake, for example, as a result of malformed robots.txt or similar situations)
3) you are linking a service which owns exclusive rights to some content and has published it (case Google vs Belgian newspapers).

Regretfully, both your article and TAG linking article don't tell the difference between these cases,  and that's wrong.
Let us also mention that we talk about different "illegalities" here:

a) you may be found guilty of intentionally violating exclusive rights; that lead to fines and/or inprisonment AND compensation to the right owner;
b) you may be found NOT guilty, but you still have to compensate author's losses, both direct and potential. This situation is similar to breaking a bottle in a store: you are not guilty, but you have to compensate. In Russian law this concept is known as "innocent responsibility" and is stated by the High Court; I don't know how to correctly translate this term, but I'm pretty sure that EU/US law has the same concept.

Let us then return to linking & copyright situations.
In situation (1) you are definitely violating the copyright. And if the court find that you did that intentionally (e.g. you knew that the service you're linking was violating the copyright) then you'd be found guilty. Though this kind of situations occurs very rarely, I'd predict that in a couple of years there would be a rush of such a cases and, maybe, new laws.
Let us also mention that illegality of linking the copyright-violating services is a well-known fact; search engines delete millions of illegal URLs in response to copyright holders requests:
http://www.google.com/transparencyreport/removals/copyright/
At present moment there is no working procedure to force any site to delete any link, and my greatest concern here (and that's why I started this topic) that some kind of procedure will be developed in a couple of years. We'll also probably face a desire not only to delete links but to check them for legality before posting.
In Russia such a move resulted in an anti-piracy law of 2013: http://en.rian.ru/russia/20130621/181797781/Russia-Passes-Flawed-Anti-Piracy-Law.html under which any website could be blocked by IP-address for possible copyright violation.
If anyone interested I can make a review of this law and its consequences to our F2F meeting.

Situation (2) is complicated and court decisions would depend on particular situation. Though usually you wouldn't be charged, but it is very likely that you'd be forced to delete the link.

And in third situation at present moment you're quite safe, but still there is some room for copyright holders to maneuvre. WCT says that the right of making a work publicly available is exclusive. If you found a link to a work and reposted it then you made it available to broader public, so someone could treat it as violating author's exclusive right. So, again, I'd expect that cases like Google vs. newspapers would spring up in following years.

Let us return to initial question. Is it safe to post a link? No, unless you're very sure that service you're linking doesn't violate the copyright (and this effectively means just "no" because you have no mechanism to check). Should we expect some new laws (let us say more correctly - new subordinate legislative to define a procedure to implement the WCT statements) restricting linking? Seems like "yes" too.

19.09.2013, 19:30, "Ashok Malhotra" <ashok.malhotra@oracle.com>:
> Please look at http://webdesign.about.com/od/legal/a/aa030507.htm
> which was linked from my blog http://malhotrasahib.blogspot.com/2013/07/linking-and-law.html
> but for some reason the link does not work.
>
> I believe Jennfer Kyrmin is a lawyer and she carefully lays out what is a link and what is not.
> She says "Because the act of linking to a site does not imply ownership or endorsement, there is no reason you would need to ask permission to link to a site that is publically accessible. For example, if you found a site URL through a search engine, then linking to it shouldn't have legal ramifications. There have been one or two cases in the United States that imply that the act of linking without permission is legally actionable, but these have been overturned everytime they come up."
> All the best, Ashok
> On 9/19/2013 11:11 AM, Konstantinov Sergey wrote:
>
>> š19.09.2013, 18:42, "David Booth" <david@dbooth.org>:
>>> šOn 09/19/2013 06:49 AM, Konstantinov Sergey wrote:
>>> š[ . . . ]
>>>> šššPublishing hyperlink to a work definitely makes it available in a
>>>> šššsense of WCT as it provides "a way that members of the public may
>>>> šššaccess these works from a place and at a time individually chosen by
>>>> šššthem". In that sense linking is NOT the same as referring: when
>>>> šššyou're referring a work, you state its name and catalogue number;
>>>> šššwhen you link it, you state WHERE to found it.
>>> šThat doesn't follow at all. šStating where to find something is just an
>>> šalternate means of identifying that thing. šIt does *not* automatically
>>> šprovide access.
>>>
>>> šIf I tell you that my will is in safety deposit box #1047 in the vault
>>> šof Bank of America, Harvard Square, Cambridge, MA USA, you may know
>>> šexactly what document I mean and where it is but you certainly do *not*
>>> šhave access to it.
>>>
>>> šA URL literally identifies the *name* of a server and the *name* of a
>>> šdocument relative to that server. šIt has nothing to do with granting
>>> šaccess rights. šIf access is not authorized, a "401 Unauthorized" HTTP
>>> šcode should be returned.
>>>
>>> šDavid Booth
>> šIn first, I haven't said that link *always* violates copyright. Links *may* violate copyright.
>> šIn second, service isn't a bank and there is no law to force services to authorize every user on every page. I can make a copy of a film for personal use and place it to my home server, and I would not violate any copyright law. I can even send a link to my friend, and that's still not a violation.
>> šIn third, I don't think that forcing services to authorize every user accessing every piece of content is somehow better then controlling every link in the Internet.

-- 
Konstantinov Sergey
Yandex Maps API Development Team Lead
http://api.yandex.com/maps/
Received on Sunday, 22 September 2013 09:29:54 UTC

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