W3C home > Mailing lists > Public > www-tag@w3.org > March 2011

Re: Arrested - re: TAG ISSUE-25 deep linking

From: Noah Mendelsohn <nrm@arcanedomain.com>
Date: Wed, 09 Mar 2011 10:34:33 -0500
Message-ID: <4D779E09.1040201@arcanedomain.com>
To: ashok.malhotra@oracle.com
CC: Jonathan Rees <jar@creativecommons.org>, Tim Berners-Lee <timbl@w3.org>, TAG List <www-tag@w3.org>
My guess is that the right answer should depend some on context, as it 
would with reference to things like phone numbers. I'm not a lawyer, but 
what I think I'd like the law to say is:

* If you publish a page that says <a href="...most any URI...">, that's 
presumed not infringing.

* If I come upon that page and click on the link, there should a 
presumption that I am innocent of copyright infringement unless either a) 
it can be shown that I knew in advance that following the link would 
violate copyright or b) if after following the link, the copyrighted status 
was clearly indicated, and I continued nonetheless to view the material, or 
through intentional action (as opposed to, say, browser caching) caused 
additional infringing copies to be made.

* If you publish a page that includes: "Link to <a href="...most any 
URI..."> to view for free movie X that you would otherwise have to pay 
for", that's infringing not because of the link, but because you encouraged 
me in the English text to steal.

* If you say: "Link to <a href="...most any URI..."> to view for free movie 
X", then the burden should be on the plaintiff to prove that you reasonably 
should have known that you were encouraging linking that would result in 
theft, and the burden of proof should be fairly high.

That's what makes sense to me. If W3C can do anything to help the 
legislatures and the courts wind up with rules like that,I'd be in favor. I 
don't have first hand knowledge of the specifics of Mr. McCarthy's case, 
but in the interest of full disclosure, I should say that I signed the 
Demand Progress petition a few days before Tim brought this to the TAG for 
consideration.

Noah



On 3/9/2011 10:10 AM, ashok malhotra wrote:
>
> On 3/9/2011 6:34 AM, Jonathan Rees wrote:
>> It certainly sounds as if ICE has convinced a judge at arraignment (I'm
>> assuming that there was an arraignment) that linking can constitute
>> infringement.
>
> If I have a large, boldface banner on my website that says "Do Not Link to
> this Website" then I assume
> that it can be argued that linking to the website constitutes infringement
> as long as I saw the banner
> before I linked. Can I argue that my website is my "property" in the legal
> sense and so I can regulate
> its use?
>
> Ashok
>
>
Received on Wednesday, 9 March 2011 15:35:03 UTC

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