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Landmark Canadian Hyperlink Case Goes To Supreme Court

Soulskill posted more than 4 years ago | from the moose-sense dept.

Canada 118

An anonymous reader writes "Vancouver businessman Wayne Crookes is trying to reverse a decision by BC Supreme Court judge Stephen Kelleher that linking is not the same as publishing. He's been given permission to appeal it to the Supreme Court of Canada. If he wins, it could mean the end of the net in Canada and will reverberate around the world. 'The notion that someone might be considered a publisher merely by linking to someone else's content, I think could have a potentially huge chilling affect [sic] and, for that reason alone, is going to have a major impact on the shape of the Internet in Canada,' says Ottawa law professor Michael Geist. Hyperlinking is what the web is all about, says p2pnet founder Jon Newton. 'Without it, the Internet would become a drab and pale facsimile of the exciting news, data and information medium it is today. Instead, each item would be isolated from every other item, and online defamation lawsuits aimed at anyone and everyone with a Web site would instantly become commonplace.'"

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It's aboot time, eh? (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#31723544)

Fuck Canada.

Re:It's aboot time, eh? (0)

Anonymous Coward | more than 4 years ago | (#31723600)

like Parks Canada, eh?

Re:It's aboot time, eh? (1)

killmofasta (460565) | more than 4 years ago | (#31723706)

Beer and all that. BUYING beer, and drinking it are different things. This case could bode very well for the Vancouver isohunt.com. Lets hope the Supreme court in Ottawa see things in their best light.

Remember, there are less people in Canada that in Los Angles, and a lot friendlier.

98% of Canadians live within 120 miles of the boarder.

Re:It's aboot time, eh? (1)

McGiraf (196030) | more than 4 years ago | (#31723828)

What's the name of this boader?

Re:It's aboot time, eh? (0)

Anonymous Coward | more than 4 years ago | (#31725288)

We amassed our population on the border for one simple reason - "40th parallel or war" doctrine. If US chooses not to give up all land down to 40th parallel, Canadian population will simple move south and assimilate. This is rumored to include changing all signs to km/h and labeling items in ml and litres (also spelling it that way) and otherwise using metric measurements. It is believed the that mere mention of Centigrade temperatures to Americans will cause them to flee south 200,000 m.

Re:It's aboot time, eh? (0)

Anonymous Coward | more than 4 years ago | (#31723844)

The boarder seems like a pretty poplar guy.

Re:It's aboot time, eh? (3, Informative)

eggnoglatte (1047660) | more than 4 years ago | (#31724502)

Remember, there are less people in Canada that in Los Angles, and a lot friendlier.

Not even close.

Population of metropolitan LA: 17.7 million [google.com]

Population of Canada: 33.3 million [google.com]

Re:It's aboot time, eh? (0)

Anonymous Coward | more than 4 years ago | (#31728188)

On the contrary, I would say that is pretty close. You are comparing the population of a city to the population of a country and it It isn't even off by an order of magnitude.

Canada has less than twice the amount of people that one (admittedly large) city area in the US has. Wow.

Re:It's aboot time, eh? (1)

Khyber (864651) | more than 4 years ago | (#31725616)

"Remember, there are less people in Canada that in Los Angles, and a lot friendlier."

What the hell are you talking about? Los Angeles is maybe 1/3 to 1/2 the population of Canada.

Try actually living here before you speak about a place you obviously know nothing about.

Re:It's aboot time, eh? (1)

CrackedButter (646746) | more than 4 years ago | (#31723874)

I thought this was pretty funny, not flamebait.

Not just the Supreme Court... (5, Insightful)

goobermaster (1263770) | more than 4 years ago | (#31723546)

What gets me is not that this is going to the supreme court (where I'm sure it'll be tossed out regardless) but that it when it was dismissed from the BC Court of Appeals, there was a dissenting judge...

Government _really_ needs to become better educated on technology and how the 'tubes' work. See - the same thing happens up here in Canada too!

Candida is on internet? Like Somalia having ports (-1, Troll)

Anonymous Coward | more than 4 years ago | (#31723834)

It is not prudent to let Candida on our internet, because that is [sick].

It's not so obvious I think (1)

goombah99 (560566) | more than 4 years ago | (#31725304)

It might seem obvious that linking is not publishing. But wait. Let's think about this more clearly for a second. Is the page you are looking at one monolithic published chunk of text? No, it's many auto-expanded links. Did the images show up as links to images or did your browser go and fetch those images and display them.

Thus a person can create a set of links that display art works or copyrighted images from other sites simply by placing links in his documents.

likewise one can have kinds of links or scripts that auto-expand to place text, movies and audio into other images.

Now let's reconnect this to the bit torrent case. Bit torrent is a transport protocol. it moves a document from one place to another. So is for example quicktime or flash. they transport video. they also display video.

SO If I created a browser plugin that transported a movie and displayed it would I have published that video? Does it matter that the transport was flash or bit torrent. Does it matter that transport layer (bit torrent or http) does not actual do presentation (quicktime or flash)?

No the ONLY, ONLY ONLY thing missing here is a browser plugin that combines the two steps of bit torrent and video display. That's the oninon skin difference between a simple pointer and an active publication. Eventually someone will write that plug in. indeed I believe they exist already. But to give an example: it used to be that pdf documents did not display in a browser but had to be presented just as links. Now they display. These things happen.

Linking can be publishing because all web pages short of just plain text are inherently are a bunch of links that assemble their content.

Thus actually, it's naive to think that linking is NOT publishing.

Re:It's not so obvious I think (3, Interesting)

raftpeople (844215) | more than 4 years ago | (#31725394)

It all depends on your definition of publishing. Maybe there is an accepted legal definition of publishing, I don't know, but if not, trying to map current electronic activities into a print-based definition doesn't really make sense.

Re:It's not so obvious I think (3, Interesting)

inKubus (199753) | more than 4 years ago | (#31725414)

"Publishing" is making some content available to the public. The question is really is advertising a public location for a given piece of content "publishing" that content. Further questions could also be asked, such as: Is owning the server that the content on make you the publisher? In this latter case, I think we need to draw parallels with the printing industry, because they have a lot of precedent that we wouldn't want to just throw away.

1. Owning the server and network connection is like owning a printing press.
2. Links are advertisements.
3. Publishing is the act of making it available. In the case of public (free) publishing, that would be uploading the content to the web server.

Re:It's not so obvious I think (2, Insightful)

goombah99 (560566) | more than 4 years ago | (#31725566)

I already anticipated your response in a post further down the page [slashdot.org] . Se there for more discussion. But to offer a quick example to show why the line between "linking" and "hosting" is not so clear consider the following.

someone takes a copyright image and XORs it with random data taken from some publicly avalaible list of random numbers. If they host this image it's not violating any copyright. it's just a random piece of crap.

now some third party links to both this image and to the random number key. IS that publishing? not yet you say? okay, suppose they include some javascript or some future HTML 9.0 tag that xors the images together to recreate the copyright image. Surely that is publishing?

But it's just links. THe data all was hosted elsewhere and not hosted in a form that constituted any infringement. The infringing information was the knowledge of how to combine the two images and that was all in the links.

see my other post for more discussion.

Re:It's not so obvious I think (2, Interesting)

sjames (1099) | more than 4 years ago | (#31726306)

That's not mere linking though. That's serving data. There would be a lot of legal hairs to split (probably based on intent) to determine which of the several actors there were publishing the content. In your case, the someone who published the XORed content with the intent that the XOR be reversed has published (the intent is what matters). OTOH, if you create a key that when applied to someone else's unrelated work in order to reproduce a copyrighted work, you are the publisher (since you were the one that had the intent to transmit the work). If I merely point someone to your site, I have NOT published the work.

Re:It's not so obvious I think (1)

Jah-Wren Ryel (80510) | more than 4 years ago | (#31726870)

someone takes a copyright image and XORs it with random data taken from some publicly avalaible list of random numbers. If they host this image it's not violating any copyright. it's just a random piece of crap.

This premise is faulty. It is a derivative work - one with zero additional creative expression for that matter. Just because it isn't obviously a derivative work without the right context doesn't make it less so.

Re:It's not so obvious I think (2, Interesting)

techno-vampire (666512) | more than 4 years ago | (#31726504)

The question is really is advertising a public location for a given piece of content "publishing" that content

If so, every newspaper that contains a listing of what movies are showing in what theater is "publishing" the movies in question and TV Guide is publishing an awful lot of television content, week in and week out.

Re:It's not so obvious I think (2, Insightful)

goombah99 (560566) | more than 4 years ago | (#31725428)

Anticipating the comeback to my post above....
one might try to argue "the linker to hosted material is not the publisher. the publisher is the person hosting the material".

I'd agree in large measure but one can intentionally muddy this a bit. consider the following thought experiment.

I divide a movie into a million single pixel movies. Byt themselves none of these single pixel movies is an "image" it's just a time series of color. Now I host these on 1 million different web sites.

I then create a page linking to all million of these websites and geometrically arranging the pixels into a rectangle.

when you load this page, you see a movie mad up from links.

did the important information here reside in any one of the hosted 1 pixel movies or in the knowledge of how to re-assemble them?

if you again say, in the hosted 1-pixel movies. then I'll instead link to static color pixles and have a javascript that keeps changing which color patch a given pixel points too. now the hosted color patches clearly are not publishing anything copyrighted. it's just a pixel of color, not a time series. it's the javascript that is chinging these in time and posiution to make a movie.

where does the important info now lie? is it the linking that is publishing or the hosting sites.

I hope you can perceive the analogy to bit torrent. A torrent file contains a lot of information about where to find the slices of movie. But it's just links to other places hosting data. None of the hosts is hosting a full movie, just slices. The slices would be useless without info about how to they go together and where to find missing ones.

so is the torrent tracker hosting the movie or the peer/seeds?

I'd say the line is grey where you move from the tracker links being the critical info to the peers data files.

publishing can be linking.

Re:It's not so obvious I think (1)

sjames (1099) | more than 4 years ago | (#31726334)

So, you wonder if you transcode the movie into an incredibly inefficient codec and then serve it to people, does that make you a publisher of that media? Of course it does, you served it up.

Again, that is considerably more than merely linking.

Otherwise, nobody is a publisher.

Conspiracy to commit copywrite infringement (0)

Anonymous Coward | more than 4 years ago | (#31728734)

By dividing up the data of someone's copywritten property over a combination of several websites and links, you simply change the crime from copywrite infringement, to conspiracy to commit copywrite infringement. Organized crime is generally frowned upon rather more seriously than individual criminal acts.

Your XORed file still infringes copywrite. It is merely an encripted version of stolen content. Providing the key is furthering the infringement.

None of this speaks to whether "information should be free" (as in ought to be) which is a political rather than legal position, or perhaps a defense of profit for those who benefit from the use of content they did not create.

Re:It's not so obvious I think (1)

nicolas.kassis (875270) | more than 4 years ago | (#31725666)

But is this linking or including? I mean, yes a link tells the browser where to find the information BUT the HTML/Javascript code does also include it into the page. If all that visible for the link is a button or link and a title then in what way does it constitute republishing the original content. The user must click on the link to access the original content.

Re:It's not so obvious I think (1)

goombah99 (560566) | more than 4 years ago | (#31727576)

But is this linking or including? I mean, yes a link tells the browser where to find the information BUT the HTML/Javascript code does also include it into the page. If all that visible for the link is a button or link and a title then in what way does it constitute republishing the original content. The user must click on the link to access the original content.

On many browsers PDF used to be something that you had to download to view. Not any more. Likewise on some browsers you can mouse over a link and see a preview of the page. IN the very early days of hyperlinking (things akin to lynx) images were not embedded but were downloadable.

As browsers move into the future more and more things that were "downloads" become embedds. this happens without the HTML changing. it's the browsers that are changing.

thus you can't really draw the line you want to draw so clearly.

Re:It's not so obvious I think (1)

sjames (1099) | more than 4 years ago | (#31726264)

SO If I created a browser plugin that transported a movie and displayed it would I have published that video?

It's not actually that hard. The answer is no. The machines where the torrent grabs the video each published a small portion of it, but you just pointed to it.

Otherwise, If I say to someone "Hey, you should really read this book, you can buy it in the store over there", I have published the book. I think we can agree that such a thing is patently absurd.

As for the image case, there is not even a need to resort to law at all. Only a fool would link to an image on another site if the other site's owner doesn't want him to. If said fool does, the originating site can replace it with any of a number of fine choices from 4chan.

In other words, merely pointing to content is not publication. Serving that content is necessary to be publishing it (but may not be sufficient).

Re:Not just the Supreme Court... (1)

Mashiki (184564) | more than 4 years ago | (#31725916)

Glad to see there's yet another Canadian who doesn't understand how our court system works. You'll note the sarcasm there. Believing that having non-tech-savvy judges is the reason behind this is being naive. Having a dissenting judge doesn't make a case invalid for the SCC either. It means that on some technical or rule of law argument there was a judge disagreeing with what the other two said(this happens a lot). In order to further clarify this disagreement and standardize the RoL it goes to the SCC.

It's always enjoyable to head down to my local appeals court to watch a case for the day(since I live in Ontario, I get the pick of the busiest courts in Canada), and seeing the arguments over "yes" in what context for 4 hours. Welcome to appeals courts.

Here in America... (2, Insightful)

BadAnalogyGuy (945258) | more than 4 years ago | (#31723550)

Here in the U.S. we routinely send important cases up to the Supreme Court for decision.

Re:Here in America... (1)

davester666 (731373) | more than 4 years ago | (#31724384)

Yes. Everybody with sufficient money and time appeals to the US Supreme Court. Now, how many of those cases actually are accepted by the US Supreme Court? 1%? [from http://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States#Selection_of_cases [wikipedia.org] : "receives approximately 10,000 petitions for certiorari, of which approximately 100 are granted"]

Re:Here in America... (3, Informative)

decoy256 (1335427) | more than 4 years ago | (#31724518)

Actually, money is not the deciding factor on what goes to the Supreme Court. In fact, there are countless cases where the appellant is indigent.

The Supreme Court is most interested in cases where an important question of law is at issue. Not granting certiorari (i.e. not hearing a case -- usually just abbreviated "cert") just means that the Supreme Court feels that either the question isn't important and/or the appellate court got it right, so they don't want to waste time on it.

Re:Here in America... (1)

davester666 (731373) | more than 4 years ago | (#31724786)

While the court itself doesn't care about the monetary value of the case, it takes a LOT of money for any given case to get there, and if you do get there, you definitely don't want to cheap out on preparation if you really want your case to be accepted.

As for the number of cases they accept, think of it another way. The court historically handles under 100 cases every year [the wikipedia article mentioned they used to do around 150 in the '80s and '90s]. So is it just a fluke that every year only around 1% of the cases are worth being heard, or are you screwed just because the court happened to receive say 110 other cases that it deems more important than yours so their work load is filled and your case is arbitrarily rejected. Sure, your case has gone through multiple other courts, but in the end, you lose because of happenstance.

Re:Here in America... (0)

Anonymous Coward | more than 4 years ago | (#31726132)

Or from yet another point of view, how many of those appeals involved important high level legal issues that are either undecided grey areas or things that need changing? How many are just people who want to win no matter what and therefore keep appealing up to the next level until there's no longer a next level?

I seem to hear about two or three important precedent-setting cases a year, so let's give it the extreme benefit of the doubt and say there are 20 a year. But the supremes hear about 100 cases a year? Then that'd mean they aren't anywhere close to rejecting any of the real important stuff. There are almost certainly some appeals in that 10,000 submissions that it'd be good for them to review and they just don't have the time or manpower to do so, but there are no huge looming constitutional injustices that are continuing on forever unfixed because there's always a hundred other more important huge looming constitutional injustices that get heard first every year.

Re:Here in America... (0)

Anonymous Coward | more than 4 years ago | (#31727880)

The Supreme Court tends to take cases in order to resolve splits in the circuit courts. When the lower courts have resolved legal questions differently, the Supreme Court will find more of a reason to intervene and pronounce their interpretation of the law. In so doing, the Supreme Court is also given the opportunity to witness the effects of the differently resolved legal question to determine if one interpretation yields better efficiency or benefits.

As far as state law is concerned however, the Supreme Court will often defer to state supreme courts as the final arbiter of their local jurisprudence. It is only when a state court's interpretation transgresses federal or constitutional law that the court will find reason to grant cert.

WTF (0)

frisket (149522) | more than 4 years ago | (#31723556)

So WTF is Wayne Crookes anyway and what's his beef?

Re:WTF (1)

Trepidity (597) | more than 4 years ago | (#31723656)

Well I can say he's certainly not a crooke.

Re:WTF (2, Informative)

Trepidity (597) | more than 4 years ago | (#31723694)

Upon some additional research, it appears that very pun, surely an obvious one, is one of the many things he's suing over: He alleges that it was libelous for some websites to refer to him and his associates as a "gang of Crookes".

Re:WTF (1)

JustOK (667959) | more than 4 years ago | (#31723756)

what a crock

Re:WTF (0)

Anonymous Coward | more than 4 years ago | (#31723776)

Upon some additional research, it appears that very pun, surely an obvious one, is one of the many things he's suing over: He alleges that it was libelous for some websites to refer to him and his associates as a "gang of Crookes".

Sounds like the Gang of Crookes is getting a tad bit sue happy

Re:WTF (0)

Anonymous Coward | more than 4 years ago | (#31723664)

I'd link to the relevant page, but then I'd probably be sued by him. :-)

[Hint: he's a silly person that thinks linking to potentially libelous information about him amounts to actually speaking the libel]

Meh, I'm not that scared [google.ca] , because Google can take the rap for the actual links :-)

Re:WTF (1, Informative)

Anonymous Coward | more than 4 years ago | (#31723904)

Apparently he's a former official of the Canadian Green Party who is butthurt that people say mean things about him on the internet.

I just hope this lawsuit provides enough cover for him to get the horses and the Thai ladyboys out of the country before the press finds out.

The end of the 'net in Canada? (1)

Bearhouse (1034238) | more than 4 years ago | (#31723574)

Gasp! Well, no actually.
This stupid case was tossed out in the first instance, and will certainly lose in the second...

Enough with the sensationalist headlines already.

Re:The end of the 'net in Canada? (4, Insightful)

PolygamousRanchKid (1290638) | more than 4 years ago | (#31723630)

This stupid case was tossed out in the first instance, and will certainly lose in the second...

Never underestimate the the ignorance of technology of governments and their courts.

Re:The end of the 'net in Canada? (4, Interesting)

Bearhouse (1034238) | more than 4 years ago | (#31723786)

Actually, I think that the courts pretty much demonstrated good understanding of technology in the first judgement.
It's normal that the plaintiff should have a right of appeal - that does not mean he'll win, or that the appeal court does not 'get' the Web.

This case hinges on whether or not linking is publishing, which - under the admittedly fairly bonkers rules of English-based defamation laws, (see http://en.wikipedia.org/wiki/Defamation [wikipedia.org] ), determines whether or not someone has been libellous, (since we're talking about the written, rather than the spoken word).

In the initial judgement, the Court reasoned, "...hyperlinks...are analogous to footnotes, rather than constituting a 'republication.' "

In other words, he did not repeat the libel, so no case.

"Given permission to...pay lawyers" (4, Funny)

Kupfernigk (1190345) | more than 4 years ago | (#31723582)

Hello Mr. rich person. As you appear to be dead set on having your own way contrary to the received opinion of most of Western Society, we will allow you to cure yourself of this tendency by transferring large sums of money from your account to those of various lawyers. You might call it a tax on arrogance. Quem dii vult perdere, dementat prius (if you lose the gods your Prius accelerates mysteriously)

Re:"Given permission to...pay lawyers" (0)

Anonymous Coward | more than 4 years ago | (#31725168)

Quis dei voluntatem perdere, dementat prius.

Maybe the internet would be better off! (3, Insightful)

tjstork (137384) | more than 4 years ago | (#31723598)

Really, I think the whole sturm and drang of the doom of the internet is so much a red herring. This would hurt content aggregators, of course. They would ultimately have to pony up for links to interesting sites, rather than the benefit of a no-follow link. But, between google bombing, link farms and all the other useless link content on the internet, I would not mind a sweeping away of sites that really offer no value at all. Far from being this rich and beautiful thing, most of today's internet is just an over-advertised waste of time.

Re:Maybe the internet would be better off! (2, Insightful)

anarche (1525323) | more than 4 years ago | (#31724654)

Ironic considering your sig. I giggled, but throw in some advertising and your site may fall into the latter category.

Not trying to flamebait, but...

Re:Maybe the internet would be better off! (1)

tjstork (137384) | more than 4 years ago | (#31726986)

Ironic considering your sig. I giggled, but throw in some advertising and your site may fall into the latter category.

You've got a point. Perhaps I should make my site's motto - "An underadvertised waste of time."

..or the problem would be circumvented... (4, Interesting)

popo (107611) | more than 4 years ago | (#31723602)

> " Instead, each item would be isolated from every other item, and online defamation lawsuits aimed at anyone and everyone with a Web site would instantly become commonplace."

Actually, what would happen is everyone would host their websites offshore in nations with looser copyright laws, and the Internet would become increasingly decentralized as larger, "legitimate" players are isolated, and independent, "less legitimate" players circumvent legislation and continue to link.

Ironically, this will *hurt* big media.

Re:..or the problem would be circumvented... (1)

Nerdfest (867930) | more than 4 years ago | (#31723876)

nations with looser copyright laws

This is one place where the standard spelling error seen on SlashDot would completely reverse the meaning. Glad you spelled it correctly.

Re:..or the problem would be circumvented... (1)

nextekcarl (1402899) | more than 4 years ago | (#31724088)

Granted, I'm not Canadian, nor a lawyer, but I've been accused of having a Canadian accent and I know-it-all, so I'll feel free to comment anyway. It appears this case isn't really about copyright (directly) but instead just about libel. Copyright would be silly, of course, since nothing is copied, but defamation is at least slightly more murky (though only slightly). What the plaintiff wants to know if whether by linking to potentially defamatory material, is the defendant effectively spreading the material around in a way he's liable for under English law? That has nothing to do with copyright, which is the only reason he might have a case, AFAIK.

Re:..or the problem would be circumvented... (1)

schon (31600) | more than 4 years ago | (#31724312)

what would happen is everyone would host their websites offshore in nations with looser copyright laws

No. Even if you're using an offshore host, you'd still be breaking the law.

You'd have to move yourself offshore, not just your content.

What an understatement (1)

spyrochaete (707033) | more than 4 years ago | (#31723632)

[blockquote]Hyperlinking is what the web is all about, says p2pnet founder Jon Newton. 'Without it, the Internet would become a drab and pale facsimile of the exciting news, data and information medium it is today. [/blockquote]

Um, without hyperlinking it wouldn't be much of a "web" at all, would it? Why is the defendent so clueless about his own case? This isn't a matter of something interesting becoming drab, it's a matter of whether Canada chooses to exclude itself from the civilized world.

Re:What an understatement (1)

spyrochaete (707033) | more than 4 years ago | (#31723638)

As you can plainly see, web standards are very important to me!

Re:What an understatement (3, Funny)

daveime (1253762) | more than 4 years ago | (#31723684)

[superfluous-tag-that-will-be-ignored]
Putting HTML tags inside square brackets is a "standard" now ?
[/superfluous-tag-that-will-be-ignored]

Re:What an understatement (1)

spyrochaete (707033) | more than 4 years ago | (#31723854)

I confused PHPBB code by accident. I'm not in the habit of entering HTML in a form textarea.

Re:What an understatement (0)

Anonymous Coward | more than 4 years ago | (#31724094)

You must have your own set of Web standards.

Levels of Indirection? (2, Interesting)

TheRaven64 (641858) | more than 4 years ago | (#31723660)

What constitutes a site? If I hyperlink to one page, am I 'publishing' everything hosted on that domain? Everything linked to from that page? Everything connected via the transitive closure of links from that page (which, in some cases, might include the entire Internet)? If I'm only publishing the directly-linked page, then the law is irrelevant and pointless, you can just link to something that redirects to the real destination (and waste a lot of bandwidth for people in Canada). If it includes the entire site, then this means that linking to an Ubuntu iso download page (for example) on a torrent site also makes you liable for everything that's hosted on that site. If it's anything linked even indirectly, then linking to Slashdot makes you responsible for Goatse. There is no possible interpretation of this concept which isn't stupid.

Re:Levels of Indirection? (1)

anarche (1525323) | more than 4 years ago | (#31724694)

What? You've published the entire Internet!?!

So you'd be guilty of copyright, liable, and bad spelling?

Can I get a copy of your Internet off you? Limewire perhaps? /stupid2amme

Should ban voice to voice (1)

Midnight Thunder (17205) | more than 4 years ago | (#31723666)

Next he will want us believing that talking about his site is the same as showing it on TV.

  If he doesn't want anyone linking to his site, then there are two solutions:
    - Don't have a web site
    - If there is a 'referrer' header, kick people to site that would appreciate the traffic

Either way, if this doesn't get thrown out, then we will need Geist to and knock some sense into those judges.

This is about defamation not copyright (2, Interesting)

Palestrina (715471) | more than 4 years ago | (#31723680)

The cases that worry me more are the ones that concern linking (especially deep linking) and copyright.

This case is about defamation, apprently the written kind which is called libel.

From what I can see (and I am not a lawyer or Canadian), the following has been held:

The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory.

Thomas v CBC 1981 4 WWR 289

I would be surprised if this case was decided on technical analysis of the exact nature of a hyperlink in HTML. (Of course I am often surprised) I think they might decide based on the effect of publishing the hyperlink. If it has the effect of slander, then it is slander.

Re:This is about defamation not copyright (1)

russotto (537200) | more than 4 years ago | (#31724018)

If it has the effect of slander, then it is slander.

It has to be the "publication of matter conveying a defamatory imputation". The hyperlink might "convey a defamatory imputation" if (and only if) someone clicks on it to reach the libelous material, but unless publication of the hyperlink itself is what conveys the defamatory imputation, it shouldn't be covered. Since the lower court already decided that way and there's a real-world analog in footnotes (where publishing a footnote which refers to a defamatory work isn't itself defamatory), it's at least likely the Supreme Court won't screw it up.

Not that this will save you if the text of the hyperlink itself is "PLAINTIFF IS A KIDDY FIDDLER", of course.

IANAL, IANAC, IANACL

If you want a preview of the result (2, Informative)

Anonymous Coward | more than 4 years ago | (#31723698)

Look at German web sites. Many have a disclaimer about the links on the site (translation follows): "Mit Urteil vom 12. Mai 1998 hat das Landgericht Hamburg entschieden, daß man durch die Ausbringung eines Links die Inhalte der gelinkten Seiten sich zu eigen macht. Dies kann nur dadurch verhindert werden, dass man sich ausdrücklich von diesem Inhalt distanziert. Für alle Links gilt: Ich distanziere ich mich hiermit ausdrücklich von allen Inhalten aller gelinkten Seiten auf meiner Homepage." Translation: "The Hamburg district court has ruled on the 12th of May 1998 that placing a link appropriates the content of the linked page. This can only be avoided by expressly distancing oneself from the content. The following applies to all links: I distance myself expressly from the content of all pages linked from my homepage."

This disclaimer is obviously bogus, because why would anyone flat out distance themselves from all links and still place those links. A blanket disclaimer can not be used to expressly distance oneself from all linked content. It says as much in the very ruling which is referenced in the disclaimer! Another problem with the disclaimer is that the ruling never actually became legally binding.

However, the notion that linking to a defaming page can be interpreted as an act of defamation itself does exist and many people have become cautious where they link to, and not just in the context of defamation either: At least one well known magazine has had injunctions filed against them for placing links to DVD copying software publisher SlySoft in online articles about the events surrounding SlySoft.

Re:If you want a preview of the result (1)

cpghost (719344) | more than 4 years ago | (#31724544)

The infamous Hamburg District Court is known for routinely churning out some very dubious verdicts, void of common sense. As long as nobody takes them up to higher courts, including the Supreme Court, they'll continue doing so and being the venue of choice for all kinds of plaintiffs... like this one [astcweb.org] in the US.

Canadian hyperlink? (5, Funny)

Shag (3737) | more than 4 years ago | (#31723720)

Would that be the <EH HREF...> ... </EH> tags?

Re:Canadian hyperlink? (1)

javalizard (781952) | more than 4 years ago | (#31724040)

Maybe this should be a part of the standard. HTML5 anyone? It's usage would be instant and 100% saturated in the market (mainly because you are banned from using it). You then describe in the standard that is the canadian linking which the law refers to. Then you redefine as being some synonym of "link." Problem solved, eh?

Context (4, Informative)

Stanislav_J (947290) | more than 4 years ago | (#31723726)

If you read the previous articles about this yahoo's quixotic quest, you'll find that he's not attacking the general notion of hyperlinking per se, but whether linking to allegedly defamatory content is, in and of itself, an act of defamation. To me, that's like saying that if a print newspaper publishes something libelous or defamatory, then anyone advertising, selling, or telling you where you can buy that newspaper is also guilty of defamation. The previous ruling seems to establish a test of context -- a mere link to the material is not actionable, but a link actively promoted in the context of implying that the content is true might be.

But in any case, hyperlinking is not "publishing," and a blanket ruling to that effect would be incredibly ignorant. There are ways to deal with the specific parameters of this case without causing collateral damage to the Net and undermining the very basic concepts that make it what it is.

Re:Context (0)

Anonymous Coward | more than 4 years ago | (#31724242)

To me, that's like saying that if a print newspaper publishes something libelous or defamatory, then anyone advertising, selling, or telling you where you can buy that newspaper is also guilty of defamation.

But in any case, hyperlinking is not "publishing," and a blanket ruling to that effect would be incredibly ignorant.

Agreed. I like your analogy.

Yet, somehow DNS redirection is still considered "contributory infringement" under the DMCA; it tries to hold both the domain owner and the registrar responsible for any content that might reside on the redirected IP. This is exactly like "telling you where you can buy that newspaper." DNS redirection is, in reality, no more than a different class of link. Yet, somehow that one managed to slip into the USA, despite the overwhelming ignorance it implies on our legislature. It wouldn't surprise me if they slipped similar language into future laws-that-no-one-reads, here--and elsewhere.

I think almost everyone can agree that linking itself is not anywhere near close to publishing. It's the overzealous urge to control content that makes these "yahoos" act. While everyone may differ on opinions of what content should and should not be allowed on a given host, I think most can agree that it shouldn't be determined by the misguided "yahoos" and litigious corporations so prevalent in our courts.

Next stop, scholarly journals. (2, Interesting)

Beorytis (1014777) | more than 4 years ago | (#31723734)

Not much of a stretch now to say that footnotes also constitute publishing.

How to libel without publishing (1)

Palestrina (715471) | more than 4 years ago | (#31723750)

Make new web site: ascii.org

URLs map ascii codes to web pages that return characters. So http://ascii.org/65 [ascii.org] returns a page with the character 'A'.

I can then send any possible libelous message entirely using hyperlinks, without actually publishing the message on my website.

Hmmm... I think this is less about the technology and more about the intent. If I link to an article, I can do it in a neutral way, in a critical way, or in a supportive way. I can use it to bolster my argument or just as a reference to the reader. I think what matters is what my entire web page says, taken as a whole, including the hyperlinks in the context of that page. I believe there are ways of linking to libelous content that are defamatory. And I believe there are ways to do this that are not defamatory.

Hmmm... maybe we need a new rel attribute value.

Re:How to libel without publishing (1)

anarche (1525323) | more than 4 years ago | (#31724722)

a rel="support4myargument/transitive_closure" href="www.thegoogleweb"???

Wayne will lose (3, Insightful)

myrikhan (1136505) | more than 4 years ago | (#31723770)

So, Wayne wants the courts to agree hyperlinking an article is "publishing" and that anyone who links to defamatory content is guilty of defamation themselves. He's already lost twice in courts.
Speaking as a Canadian, I think the snowball has a better chance in our supreme courts. My prediction is that 8 or 9 of the supreme court justices will rule against him.
Believe it or not, I think our supreme court is pretty good. They're smart people and they make sane decisions.

WE have the power! (1)

BlackBloq (702158) | more than 4 years ago | (#31723788)

We created the net and we own it. If they make laws that are unreasonable we shall program around it. As we have always done. Make hosting a web page illegal? Well then we can go undernet or do a new one and do a bit-torrent style distributed content for web pages. Lets see them try and bust encrypted distributed web pages! All we would have to do is download them, not see them real-time. The net has never been regulated! Just the seething masses that inhabit it. The net IS the sum total of its parts, and those parts for better or worse ARE US! The rest just connects the users. Try stopping us as you will but you cannot change what we are.

Re:WE have the power! (0)

Anonymous Coward | more than 4 years ago | (#31724058)

Actually, you're pretty powerless without control of the pipes or the airwaves.

Re:WE have the power! (1)

BlackBloq (702158) | more than 4 years ago | (#31724240)

That's about as smart as saying that the houses built the people not the other way around. You just don't get what I am saying, do you? The net IS the users. The content, every character typed is an extension of the user. The pipes built to connect many of them are interchangeable. I could build an internet in my own city with a wireless mesh. Computers are being built with mesh capabilities that work even when they are off. As a business man I can tell you, no venture can be taken without a user base. IE: They don't build the pipes unless users are there to pony up. So while we don't control "the" airwaves we control OUR airways. City by city block by block. So, to the controllers... bring it on.

  http://en.wikipedia.org/wiki/Wireless_mesh_network

Re:WE have the power! (1)

bhtooefr (649901) | more than 4 years ago | (#31725156)

Wireless mesh networks will break down, though, over thousands of hops.

And, consumers don't care. Consumers just want their music and videos. Those, they can get from the mass media, which will have agreements that let them link to each other.

Re:WE have the power! (1)

BlackBloq (702158) | more than 4 years ago | (#31725476)

True dat! you just have to re-feed through a paid pipe no doubt every once and a while. Considering net access is being considered a basic human right I see no point in claiming anything.

Reversing it wouldn't affect just the net.... (2, Insightful)

mark-t (151149) | more than 4 years ago | (#31723804)

If this decision were reversed, it would also be illegal to publish bibliographies or references within *IN PRINT* works, since one is publishing a reference to the source material and that would be considered the same as publishing the material itself.

The BC court had it exactly right.... links are analogous to footnotes, and *NOT* the same thing as publishing the other material.

Re:Reversing it wouldn't affect just the net.... (1)

value_added (719364) | more than 4 years ago | (#31724082)

The BC court had it exactly right.... links are analogous to footnotes ...

It's an apt analogy, but I expect laws regarding hyperlinks will evolve in such a way so as to consider instances where hyperlinks are not considered analogous to footnotes. Or don't you see the problem with a bibliography consisting entirely of such things as child pornography, Windows ISOs, or something that could be construed to provide material or support for terrorist organisations?

I'd agree that it's best to leave the web as it is, but people are known to clamour "There oughta be a law!" from time to time. When they do, legislatures are as happy to comply and write new laws into the books as prosecutors are to make use of those laws.

Re:Reversing it wouldn't affect just the net.... (1)

canajin56 (660655) | more than 4 years ago | (#31725444)

No, that's not necessary. The judge didn't rule that all hyperlinks are always OK no matter what. He ruled only that in this particular instance, the link was not libelous. In particular, he made clear that if you post a link to a defamatory web-page, with any sort of comment indicating agreement, or that the website in question is accurate, then it would be libelous. Much in the same way as if, in a book, you cited a defamatory article, not just with "This is interesting" but "Read this book for the truth on so-and-so", then your citation wouldn't just be a footnote, it would in itself be libelous.

I like this logic! (3, Interesting)

GiantRobotMonster (1159813) | more than 4 years ago | (#31723866)

If linking is publishing, then addressing should be ownership.

I must own the bank down the street, as I've just written down its address.

Finally Phase 3 is here! -- Profit!

About time. (0)

Anonymous Coward | more than 4 years ago | (#31723976)

Given Google make a fine living out of leaching the fuck out of every content provider this can only be a good thing. Why should Google profit when the New York Times invests in its journalism.

Such a ruling will require Google et al. to come to an agreement with those whom it wishes to profit from. The end result will be less profit and domination from the likes of Google and increased revenue for the companies doing the expensive work.

Re:About time. (1)

matria (157464) | more than 4 years ago | (#31724594)

Your participles are dangling.

Re:About time. (1)

colonelquesadilla (1693356) | more than 4 years ago | (#31727884)

Is that you murdoch?

Canada eh? (1)

Teun (17872) | more than 4 years ago | (#31724064)

So far it was 'just' by the BC court, now it'll be the Federal court.

But it's still 'only' a Canadian court and it's quite a stretch to immediately assume international repercussions.

Canada has signed international treaties and it'll more likely have to abide by the world's views instead of forcing it's own on the world.

"it could mean the end of the net in Canada" (1)

newdsfornerds (899401) | more than 4 years ago | (#31724126)

Yeah right. nplz.

linky linky linky (0)

Anonymous Coward | more than 4 years ago | (#31724380)

I link to you, you link to him, he links to her, she links to them... and they're doing something nawwwty.

Who gets sued for "publishing" under this rule? Potentially, all of us.

A related question of law (1)

wytcld (179112) | more than 4 years ago | (#31724564)

What does the law say about direct quoting? In Canada (or the US) if I were to write "Mr. Rat Dog has claimed that Cowboy Neal engages in illegal acts with nefarious porpoises" and it is in fact the case that such an allegation has been made, am I engaging in libel merely by stating that fact? Granting for argument that a footnote does not have the same immediacy (and thus the same potency) as a hyperlink (it takes a far more trouble to follow it up), neither has the immediacy of simply stating the fact that the claim has been made - perhaps with a full (insofar as fair use allows) quoting of the claim.

Re:A related question of law (0)

Anonymous Coward | more than 4 years ago | (#31725516)

In Canada (or the US) if I were to write "Mr. Rat Dog has claimed that Cowboy Neal engages in illegal acts with nefarious porpoises" and it is in fact the case that such an allegation has been made, am I engaging in libel merely by stating that fact?

No, you're not.

Only a Matter of Time (1)

Plekto (1018050) | more than 4 years ago | (#31724714)

History books a hundred years from now will likely read:

"And the great social and information experiment known as the Internet was brought down by the lawyers and copyright laws. The companies that ran it essentially made it strangle itself to death."

(An aside comment by myself:)
I hate to see what the lawyers will turn our world into in another 30 or 40 years. I think maybe China's idea of doing away with it all might not be so awful after all. I guess only time will tell which way of dealing with it is correct.

Check this out... (0)

Anonymous Coward | more than 4 years ago | (#31724750)

http://www.playboy.com/ [playboy.com]

Huh huh huh I just "published" porno on slashdot.

Has no one read the source article? (1)

crath (80215) | more than 4 years ago | (#31725044)

The article, nicely linked :), in the Montreal Gazette says that the challenge is not attempting to overturn the concept that links are akin to footnotes. Rather, that when it was pointed out to the poster that the link pointed to defamatory material, that the link wasn't taken down---and so, the poster's inaction is what is at issue.

If the poster had converted the link to a mere textual footnote, then no one would be able to assert that the poster was acting as a publisher. But, by facilitating access to the offending material (and not simply giving the title of the material), the poster was effectively publishing it.

This is no different than a torrent index being required to remove links to torrents of copyrighted material. If the torrent index refuses to remove offending links, then they become liable.

So Google will leave Canada, too? (1)

bgspence (155914) | more than 4 years ago | (#31725544)

Restrictions on hyperlinking would probably crush Google's business model. Not much else there other than links.

would become a drab and pale facsimile... (1)

countertrolling (1585477) | more than 4 years ago | (#31725598)

Well yeah... that's the idea. The gatekeepers are in grave danger (is there any other kind?) of losing their power.

Redirects a way around this? (1)

ArtemaOne (1300025) | more than 4 years ago | (#31725846)

What if you use tinyurl or the like? You're not linking to the site then, you're linking to a link.

Analagy and I recommend (1)

Wardish (699865) | more than 4 years ago | (#31726772)

Hi Tom. I'm looking for a book, "Catcher in the Rye".
Hey Ralph. That's amazing, I was looking for that just last week. I made a list of where you can get it.

1. Library on 6th street. Serious restrictions on use, must return, no notes in margins.
2. Bookstore on East Main. Good place but a bit pricey. On the plus side you will have a copy with full control on how YOU use it.
3. Used bookstore on 8th and Wine. Great prices but it's a nasty neighborhood. Lot of crime recorded in the area. One might even say that area's primary purpose is criminal.

Anyway, here's the list. Hollar at me later and if I have any updates I'll let you know.

I would recommend doing a bit of research on what web resources the members of the supreme court use. Then you can provide examples of what such would be if this mess isn't corrected.

affect versus effect (0)

Anonymous Coward | more than 4 years ago | (#31726814)

So, thus affect is a verb, while effect is a noun.

Implicit consent to be linked to (1)

presidenteloco (659168) | more than 4 years ago | (#31727310)

By placing your content on the open Internet, making it available upon request using the hypertext transfer protocol, and not hiding it behind a login-only session or encryption, you have implicitly consented to that content being linked to without restriction.

Tim Berners-Lee ought to make that clear to everyone.

If you want to restrict linking to your content, you need to host it on a different distribution network, other than the WorldWide Web. whose founding, essential, sine qua non assumption and principle is open inter-linking of the content it serves.

Take a DEEP Breath.... (1)

rueger (210566) | more than 4 years ago | (#31727896)

If he wins, it could mean the end of the net in Canada and will reverberate around the world.

Uh, good thing we're not getting all hysterical here....

Too late for the world (1)

Snaller (147050) | more than 4 years ago | (#31727988)

People in Denmark have been punished by the courts for having links to mp3 files on their webpages (links to other peoples pages)

The corporate greed runs to deep i bet.

Guilt by Association (3 or 4 Links Removed...) (1)

Abdul the Newt (1748454) | more than 4 years ago | (#31728948)

We're holding you responsible for linking to a site, that linked to a site that, in turn, linked to a site that had some naughty bits of information. Lock 'em up, eh.
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