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

On Fri, 2011-03-11 at 12:04 -0500, Aaron Swartz wrote:
> >  - With <embed>, the user's download of the work is caused by the
> > *website's* decision to use <embed>, *knowing* that this will cause the
> > user's browser to download the work, potentially without the user even
> > being aware that the work is not coming from that website.  Thus, the
> > website bears responsibility for the copying that has caused the user's
> > browser to perform.
> This does not seem like a distinction that would hold up to
> architectural scrutiny. In Lynx, obviously, the browser does not
> request a copy of an embedded video. In some configurations of Gmail
> and Google Talk, simply sending a textual link to a YouTube video
> causes the user to request a copy. One can imagine Greasemonkey
> scripts that convert YouTube links into small embeds. Browsers that do
> link prefetching may request the results of things that are merely
> linked to. It's impractical for the author of a page (or an email) to
> know all possible client configurations.

I agree from a purely technical perspective.  But we're talking about a
*legal* distinction -- not purely technical.  And legal distinctions
rely heavily on intent and the overall effect that an action is likely
to have in the current environment, which may indeed change as
technology changes.  

Distinguishing between transclusion and referencing is vital to free
speech on the web.  If 5 years from now the leading browsers treat <a>
as transclusion, embedding and displaying the linked content directly in
the current page, then page authors would have no way to talk *about*
something without being accused of violating its copyright.  And that
would be very bad indeed.

David Booth, Ph.D.

Opinions expressed herein are those of the author and do not necessarily
reflect those of his employer.

Received on Friday, 11 March 2011 18:42:39 UTC