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Re: "Publishing and Linking": roles of intermediaries

From: ashok malhotra <ashok.malhotra@oracle.com>
Date: Fri, 29 Jun 2012 15:53:31 -0700
Message-ID: <4FEE31EB.4080304@oracle.com>
To: www-tag@w3.org
I have been looking at chillingeffects.org which I think is a terrific resource.  Here is an excerpt of what it says about linking.

*Question:* *Do I need permission to link to someone else's site?*

*Answer*: In general, if someone is making a website publicly available, others may freely link to it. That open linking is what makes the web a "web."

*Question:* *Can a hyperlinker be protected by the DMCA safe-harbor?*

*Answer*: Someone who posts hyperlinks to online material may benefit from the DMCA safe harbor in section 512(d), "information location tools." If you linked to materials without knowing they were infringing, but then receive a notice of claimed infringement <http://www.chillingeffects.org/linking/question.cgi?QuestionID=130>, you can claim the statutory immunity if you remove the link expeditiously (see also What does a service provider have to do in order t...? <http://www.chillingeffects.org/linking/question.cgi?QuestionID=129>).

If you follow the last link you get ...

*Answer*: In addition to informing its customers of its policies (discussed above) <http://www.chillingeffects.org/linking/question.cgi?QuestionID=129#QID128>, a service provider must follow the proper notice and takedown procedures (discussed above) <http://www.chillingeffects.org/linking/question.cgi?QuestionID=129#QID130> and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].

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Clearly, these are legal opinions and, as Larry points out, they vary with jurisdiction.
Can we say things like this?

All the best, Ashok

On 6/29/2012 1:54 PM, Larry Masinter wrote:
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038214
>
> " Intermediary Liability in India: Chilling Effects on Free Expression on the Internet"
>
> Abstract:
> Intermediaries are widely recognised as essential cogs in the wheel of exercising the right to freedom of expression on the Internet. Most major jurisdictions around the world have introduced legislations for limiting intermediary liability in order to ensure that this wheel does not stop spinning. With the 2008 amendment of the Information Technology Act 2000, India joined the bandwagon and established a 'notice and takedown' regime for limiting intermediary liability.
>
> ...
>
> The paper goes on to analyze how not treating different kinds of intermediaries differently leads to problems (esp for "takedown" actions).
>
>   I think this is relevant to the "Publishing and Linking" document.
>
Received on Friday, 29 June 2012 22:52:14 UTC

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