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

I'm replying to this specific mail because it contains most details 
(thanks for digging them up, Jonathan!).

On 2011/03/09 23:34, Jonathan Rees wrote:
> I saw this one too, and almost relayed to www-tag, but I thought it would be
> better to find out exactly what this person was being charged with and on
> what evidence.

Yes. From most places, it's not very clear what the site in question 
did, and it's no longer possible to check it out.

> When I tried to drill down on this, the trail seemed a bit
> thin.
> Here is the relevant techdirt article:

The first paragraph there says:
"when that domain was seized, we had noted that channelsurfing did not 
appear to host any content itself, but merely embedded content from 
other sites." [For the rest of this mail, I'm assuming the above is 

It then goes on to say that this at most could create some "inducement" 
claim, but raises questions about why there was a criminal claim.

I personally also have my doubts about the idea of criminal copyright 
violations, and in particular about the eagerness with which these seem 
to be used by some agencies and supported by some industries. Also the 
connection between Immigration and Customs and copyright infringements 
seems dubious; surely most of the viewers of US sports TV programs are 
in the US.

However, as I have said on earlier occasions, we should be very careful 
to distinguish "referential linking" (the classical example is <a 
href=...>) from effective visual inclusion by use of an URI (the 
classical example is <img src=...>).

The site that Tim referenced seems to not make that 
distinction at all (or they didn't get the facts right). If I were an US 
citizen, I'd definitely want to protest at least some of the tougher 
methods used by the investigators, but I'm not sure I'd want to throw 
sending around links to (possibly copyrighted) stuff into the same pot 
as making money on advertising around content grabbed from others.

For me, the fact that the content is not hosted on the accused's site is 
quite irrelevant. What matters is the end effect of pulling things 
together on a page, and creating the impression they are yours. The 
"server test", mentioned for example in Perfect 10 vs Google, in my view 
will eventually be abandoned, because it will be realized that the 
distinction between whether something is included by reference (as in 
<img src=...>) or by actual copying (as has to be done to put text in a 
Web page, because the Web doesn't support text transclusion) is just an 
artefact of technology (things might be completely different on the 
technical level if Marc Andreesen had suggested something like <img 
data=...>), not in any way affecting what actually happens between the 
content and the user, and the surrounding economic system.

Of course, it may take some time ('some' may end up to be a lot, like 10 
or 20 years or so, judging from the glacial pace at which e.g. the 
patent system is tweaked with) for not-technical people to understand 
what's going on underneath the hood (of a browser), and for technical 
people to understand that what's going on underneath the hood may not be 
what's relevant, but I think things will eventually get there.

> This leads to these two ICE press releases:

I have looked at that, and at the banner on 
[The ICE should fix their text (how do you convict somebody of a 
"criminal felony copyright law" :-?, and should use text and CSS where 

> 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. But it's as likely that both the ICE and the judge are
> confused about how the technology works. I'd like to hear from someone
> competent to do legal analysis before reacting too strongly to this case.

I'm not a lawyer, but I think legal analysis in this case won't help 
much, because this is law that is still being made. And the TAG or the 
W3C should not write some amicus brief based on legal analysis, it 
should write about what it understands, namely technology (although 
having the help of a lawyer probably won't hurt).

> The action seems to be on EFF's radar:
> "Significantly, the websites targeted in the most recent ICE action appear
> to have merely linked to infringing content."

"merely linked", if it means "transcluded using an URI", seems quite 
euphemic, and risks to put a bad light on actual referential linking, 
which (modulo things such as libel laws,...) should always be allowed.

Regards,   Martin.

> Best
> Jonathan
> On Wed, Mar 9, 2011 at 5:18 AM, Tim Berners-Lee<>  wrote:
>> It seems Issue-25 has been escalated.
>> Tim

#-# Martin J. Dürst, Professor, Aoyama Gakuin University

Received on Thursday, 10 March 2011 11:35:15 UTC