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

Dear all, 

first of all, we should not base judgments or official TAG statements on the 
information conveyed by press releases. If we want to know more about it, we 
should contact the court responsible for this case. We would need to find out 
which court that is. But moreover, I sense some kind of heated emotion when it 
comes to liability for links. I caution against it and here is why: 

1/ Liability for links is nothing new

I know that the issue of link related liability is pending since a long time. 
(mea culpa) The issue is rather complex and there have been many cases. Humans 
are really creative and some even found socially undesirable uses of links 
even though this is rather hard. Add to this that not every judge in this 
world has understood the importance of links for web architecture if 
interested in architecture at all. To get a glance at the legal dimension of 
the issue, have a look at the frozen (2004) link controversy page:

2/ Is it really the link here?

While the noises in blog-land and twitter talk about going to jail for a link, 
the techdirt article talked about embedding video in pages where the video 
comes from a third party. 

3/ Was this completely altruistic?

As far as I understood from the sources cited in 
the person in question also sold advertisement on his site with the embedded 
video. The videos were allegedly from dubious origin and the litigation will 
determine whether those were played in violation of copyright. 

So this is not about the link where one points to another information, but a 
link to embed content from a third party. This is a very common (business) 
model on the web today for the federation of content. The publisher in this 
case remains mostly the first party (the site you're going to). This content 
from the third party is embedded in the person's pages and, according to the 
press releases, the person arrested has earned a non-negligible amount of 
money with the advertisement.  

4/ Speculation and assumptions
Making for a moment the (unproven!) assumption that videos and TV series were 
embedded against the rights holders wishes, one can at least say that by 
embedding this content and serving adds the person in question benefited from 
the infringement of others (who looked at the videos). Moreover, by embedding 
and offering the site, calling a page with embedded content triggers a 
copyright violation. So there is the notion of contributing (or inciting) 
other people's copyright violation and benefiting from it on a commercial 
scale. (all assumed the facts are as described) 

5/ Consequences
So somebody incited third parties to infringe copyright and found a new way to 
benefit from this infringement without distributing the allegedly infringing 
content himself from his server. Participation in (and benefiting from) from 
third party wrong-doing is nothing new in law neither. The participation will 
probably be seen by the fact that through the site, distribution and thus 
infringement was furthered thus contributing in the infringement itself, but 
there are other ways to get to some form of "participation". (e.g. taking into 
account that he made the content more visible)

So the technical link isn't in the center of the legal considerations, but the 
human behavior is. 

5/ Issue at hand

What I think the TAG can do to help is to re-emphasis the importance of the 
link for the Web. This has been done already in some court decisions, but 
there can't be enough emphasis. This will allow courts to assess the balance 
between the freedom to link, the freedom of speech and some misbehavior that 
has a direct or indirect relation to the fact of linking. It should clearly 
contain a technical categorization of links, remind the fact that the web uses 
links also as identifiers and organize an open discussion about misusing the 
new features and things we can do in the world of web applications or frauding 
via setting wrong links in a semantic web to fool my agent/application that 
relies on that link being true. (E.g. Amazon being sued for sending wrong P3P 
headers back to fool the P3P implementation of IE 6:

6/ Annex questions

Why is this a question of customs enforcement and the corresponding agency? 
Because the bulk of trademark/copyright infringements on tangible goods is via 
the import of said goods into western countries. This has let EU and US 
customs to have special departments (with appropriate privileges) with some 
experience. It looks like the US has decided to also give authority over 
infringements on the Internet to those administrations. 

Why arrested? Probably because there is a non-negligible amount of money in 
play and some circular says starting damages of xyz thousand $$$ go arrest.. 
and nobody expected this to be a special case.

Why now: IMHO due to ACTA and ACTA fallout. 



Received on Thursday, 10 March 2011 20:11:44 UTC