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Legal Motion: Hyperlinks Are Protected By the First Amendment

Soulskill posted about 8 months ago | from the pointing-to-a-thing-is-not-transferring-a-thing dept.

The Courts 49

Barrett Brown, a journalist and the former unofficial spokesperson for Anonymous, was arrested in 2012 and charged with sharing a hyperlink that pointed to information downloaded during the Stratfor hack. His trials begin in April and May. An anonymous reader notes that his attorneys have filed a legal brief (PDF) asking for dismissal of the case, saying that Brown's First Amendment right to free speech protects his sharing of a hyperlink. They argue that "Brown did not 'transfer' the stolen information as he arguably would have done had he embedded the link on his web page, but merely created a path to files that had already been published elsewhere that were in the public domain." The brief also says the statute under which Brown is being charged does not make it clear that a link constitutes "republication" of information. They add, "This construction also significantly chills scientific research conducted by private cybersecurity researchers for the same reasons."

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Disclaimer (0)

invictusvoyd (3546069) | about 8 months ago | (#46405805)

Didn't he have this useful disclaimer ?
"All characters and events in this show-â"even those based on real peopleâ"-are entirely fictional. All celebrity voices are impersonated.....poorly. The following program contains coarse language and due to its content it should not be viewed by anyone."

Hyperlinks can never become "re-publication" (2)

Taco Cowboy (5327) | about 8 months ago | (#46406175)

Didn't he have this useful disclaimer ?

Perhaps I'm kinda dimmed right now, but where did you get that "disclaimer" from ??

Back to that hyperlink that Mr. Brown is charged under ... anyone with a brain which consists of at least two neurons rubbing together will know that a hyperlink is a LINK and can *NEVER* become a re-publication (or a copy of) whatever content the hyperlink points to.

Furthermore, a hyperlink is merely a placeholder to a certain container (folder, site) in which the content may not be static.

For example, this link -
http://yro.slashdot.org/story/... [slashdot.org] points to a placeholder within the /. structure (a discussion thread in this case) and the content (the discussion thread in question) changes as more people adding more comments onto it.

As an American, I am sadden, very sadden that the government of the United States of America has become so fascist that they even try to charge people over a hyperlink !!!

Re: Hyperlinks can never become "re-publication" (0)

Anonymous Coward | about 8 months ago | (#46406193)

That disclaimer originally comes from the beginning of South Park episodes.

That whoosh was similar to, but not exactly, the sound of the Colorado winds.

Re:Hyperlinks can never become "re-publication" (0)

Anonymous Coward | about 8 months ago | (#46409023)

Perhaps I'm kinda dimmed right now, but where did you get that "disclaimer" from ??

Perhaps you are permanently dimmed

It's only a motion (4, Insightful)

edibobb (113989) | about 8 months ago | (#46405813)

A motion filed by lawyers is not a judgement and is nowhere near legal precedent, as the typically sensational /. headline implies. Lawyers regularly file motions claiming the sun rises in the West and sets in the East.

Re:It's only a motion (1)

MrBingoBoingo (3481277) | about 8 months ago | (#46405835)

Lawyers, it is great to have them, but very expensive to have them pointed against you.

Re:It's only a motion (1)

rmdingler (1955220) | about 8 months ago | (#46407051)

What do you call a lawyer with an IQ of 100? Your Honor. What do you call a lawyer with an IQ of 50? Congressman.

Re:It's only a motion (1)

Opportunist (166417) | about 8 months ago | (#46407105)

Er war ein guter Jurist und auch sonst von mäßigem Verstand
-- Ludwig Thoma

(He was a good attorney and generally of low intellect)

It loses a bit in the translation, in German it does actually imply that they entail each other.

Re:It's only a motion (1)

Russ1642 (1087959) | about 8 months ago | (#46408555)

Great to have them? What kind of backwards parallel universe did you just come from?

Re:It's only a motion (2)

ageisp0lis (2679663) | about 8 months ago | (#46405861)

The motion makes an argument. I disagree that the headline implies a judgment or precedent, as it clearly says "Legal motion:". EFF is talking about the precedent that COULD be set if convicted or this survives dismissal.

Uh, what? (1)

Zontar The Mindless (9002) | about 8 months ago | (#46405821)

They argue that "Brown did not 'transfer' the stolen information as he arguably would have done had he embedded the link on his web page, but merely created a path to files that had already been published elsewhere that were in the public domain."

Non sequitur. The means by which he shared the link is immaterial. If they meant, "as he arguably would have done had he hosted the linked files on his server", then that's what they should have said.

Re:Uh, what? (5, Informative)

ageisp0lis (2679663) | about 8 months ago | (#46405881)

This is what it says, the editor just mangled it a bit. It's missing context. The government is relying on copyright case law, which traditionally distinguishes "in-line" linking from "embedded" linking. This is neither: it's a traditional link, and so their reliance on that is flawed. - - - First, republishing the hyperlink did not make the Stratfor file available to others. As explained above, the “hyperlink” was a text string that conveyed a location where the Stratfor file could be found, and nothing more. The conveyance of information regarding the location of data is not a crime under 1028 because unlike “in-line” or embedded links, the hyperlink that Mr. Brown republished did not contain any Stratfor file data. Second, the sharing of location information is not sufficient for criminal liability under Section 1028 because to hold otherwise would stretch interpretation of the statute far beyond the reach that Congress intended. Indeed, the conduct complained of in LiveNation is known as “inline linking”—where an infringing website acts as a portal or frame for infringed content sourced at another website. In LiveNation, the “inline linking” on the infringer’s site allowed the web-surfer to “display” (or listen to) protected material without having to leave the infringer’s webpage. In copyright cases, courts have distinguished “in-line” linking for purposes of liability. As illustrated above, an “in-line link” refers to the process whereby a webpage can incorporate by reference (and arguably cause to be “displayed”) content stored on another website. By contrast, “traditional” linking (as is alleged in this case) transports the user to the linked-to page without incorporating third-party content via “in-line” linking or framing. This has been held to not constitute direct infringement, in the copyright context, even if the linked-to page is infringing. By contrast, Mr. Brown’s alleged republication of a hyperlink in a chat room cannot be described as “in-line” or “embedded” linking.

Re:Uh, what? (2, Informative)

ageisp0lis (2679663) | about 8 months ago | (#46405895)

Heh, on second examination that sentence isn't in the original motion. It's from The Guardian writer who seems not to have fully understood what they were talking about.

No (0)

Billly Gates (198444) | about 8 months ago | (#46405869)

As much as I hate the riaa for starting this shenanigan 15 years ago a hyperlink is not the same as pointing to someone.

Reason being is a hyperlink is a verb or action while pointing is an expression. You click it and something happens no different than clicking a .exe. Now what about someone linking to a published flaw? In this case the action is fine as the other user does the action and its legal to hack your own computer. It also is legal to link to a site which talks about it.

But linking an executable is simply an action or command

Re:No (0)

Anonymous Coward | about 8 months ago | (#46405883)

I just linked to your comment on my website... I hope it doesn't come back to haunt me.

Re:No (1)

jecowa (1152159) | about 8 months ago | (#46406015)

You can't link to his comment; that's copyright infringement. Billly Gates' lawyer is preparing to sue you for millions as we speak!

Re:No (0)

Anonymous Coward | about 8 months ago | (#46406825)

You can't link to his comment; that's copyright infringement. Billly Gates' lawyer is preparing to sue you for millions as we speak!

No need to reply to the poster. The federal law enforcement agency has been notified automatically by the NSA as to this criminal act and the person(s) committing the act shall be in prison awaiting trial at an indeterminate date while the laundry list of charges is assembled.

Wait a moment there is a knock at my door...#$#^$^$%^$&^CARRIER LOST

Re:No (1)

Opportunist (166417) | about 8 months ago | (#46407111)

He can't? You may say he may not, but he can. Laws of men are not laws of nature. You can break them.

GIGO. (2)

westlake (615356) | about 8 months ago | (#46406287)

Reason being is a hyperlink is a verb or action while pointing is an expression.

Gibberish,

I don't buy that... (0)

Anonymous Coward | about 8 months ago | (#46407137)

by that reasoning:
- giving instructions how to get someplace is the same as driving you there
- ikea assemlby instructions are the same thing as getting delivered with assembly done

Re: I don't buy that... (0)

Anonymous Coward | about 8 months ago | (#46408103)

By your reasoning, if I am in France and asked how to go to South Africa and only say "turn left", I am helping.

Brown linked to a page that linked to the content.

Furthermore, what if I had answer "move"?

"To get the File, simply access another server."

Re:No (2)

Opportunist (166417) | about 8 months ago | (#46407169)

Semantic nonsense.

A hyperlink is a reference. It can be used to show someone something. Essentially it is pointing at something, and if the hyperlink contains some kind of information about the target, it is like pointing and telling the person what he is about to see there.

Allow me to illustrate.

http://yro.slashdot.org/story/14/03/05/0230207/legal-motion-hyperlinks-are-protected-by-the-first-amendment [slashdot.org] : That would be pointing and not saying anything. Like pointing at a dope dealer's house without giving you any idea what you will find there. I don't tell you to go there, I don't give you any information about it. I just point at it. Whether you go there or not is not really something I can influence because all I technically did was point my finger at it. I should probably inform the police about it, but if you go there and get robbed, or your dope, that's your own business.

Hyperlinks are protected speech [slashdot.org] : That would be pointing while telling you what to see there. Like pointing at said dope house and telling you about it. Depending on what I say it may be legal or illegal. "That's where a lot of people go to get dope" could be either. "Go in there, you get good weed in there" is most likely illegal because I'd actually try to make you do something illegal. "Don't go there, it's dangerous!" would probably actually be legal. It depends on context, my intention and what I say to you. If I warn you about it and you go in regardless, how am I responsible for it? I pointed it out not to tell you to go there but to warn you to NOT go there.

PORN!!! [slashdot.org] : That would be pointing at the dope hut while telling you it's something different. I.e. lure you in. That is most certainly not legal in most countries. That would probably be an example of pointing to a malware exe while telling you something different (because few people are actually stupid enough to install malware deliberately on their computer). It's not unlike the incitement example in the previous paragraph, but with a twist, I also lie to you about the contents of the dope hut, telling you it's something you will probably want (money, girls, fame...) in case I'd assume you don't want dope.

Re:No (1)

TheCarp (96830) | about 8 months ago | (#46407613)

> Reason being is a hyperlink is a verb or action while pointing is an expression. You click it and
> something happens no different than clicking a .exe.

No. A hyperlink is a pointer to something else. A hyperlink contains no instruction as to what to do with what is on the other end of that link, the action is entirely locally defined by the web browser. A hyperlink is functionally no different from a bibliographic entry in a book...it is a named pointer; which you may or may not look up if you so choose. I don't see how the ease of doing changes the situation fundamentally.

Curious as to why this is needed (4, Interesting)

EzInKy (115248) | about 8 months ago | (#46405949)

If I post a link to a website that which at that moment doesn't host "forbidden" content but later does, am I liable for providing access to said "forbidden" content? Logic would dictate that a person can only be held accountable for their own actions, not the actions of another.

Re:Curious as to why this is needed (2)

ageisp0lis (2679663) | about 8 months ago | (#46405989)

Yeah, that is one of the huge problems with criminalizing any links at all. The content can change at any time. Transmitting a link shouldn't be equivalent to possessing or disseminating the data contents that reside at the URL.

Re:Curious as to why this is needed (0)

Anonymous Coward | about 8 months ago | (#46406797)

It's not a huge problem at all, see https://en.wikipedia.org/wiki/... [wikipedia.org]

Re:Curious as to why this is needed (1)

Opportunist (166417) | about 8 months ago | (#46407203)

The problem is trying to prove that the content was changed later without you having a chance to react. In many countries the law assumes that you constantly monitor the things you link to for changes that are not in accordance with the law. Not only a technical nightmare but also one where you'd probably have to be a lawyer to react in real time. Another proof that laws are made by lawyers for lawyers.

It can be quite hard to prove that your intent was not to link to "forbidden" content, especially when it is not possible to find out when that content on the page you linked to changed.

not quite comparable (0)

Anonymous Coward | about 8 months ago | (#46407237)

First, Brown didn't post to a website, per se, but to an IIRC channel under his control for the purposes of sharing stolen (hacked) identity data and credit card info with others that were not authorized to have it, either. Certainly, the purpose was criminal in intent. Sharing the hyperlink was a means of providing access to stolen data for trafficking purposes. If nothing else, it's aiding and abetting other criminals in acquiring the data. He's a douche bag, and he'd rob you blind in a heartbeat. He deserves whatever the feds throw at him. Your example would be different, but could still end up with an indictment until someone parsed logs to show times that forbidden content was posted.

Re:Curious as to why this is needed (1)

wisnoskij (1206448) | about 8 months ago | (#46407477)

Under the law you are liable to whatever they want you to be liable for, and this can be applied and enforced after the fact.

Re:Curious as to why this is needed (1)

jratcliffe (208809) | about 8 months ago | (#46407579)

Even if we assume that Brown's lawyers don't prevail in their arguments, the scenario you're discussing wouldn't be illegal under the statute, which requires that you "knowingly" link to the content. So, if you linked to www.slashdot.org/storyxyz, and, at some point, somebody replaced storyxyz with (say) a long list of stolen credit card numbers, you wouldn't be liable, so long as, if you discovered the content had changed, you removed the link.

If URL illegal than is DNS hoster also guilty? (0)

Anonymous Coward | about 8 months ago | (#46410873)

If a URL is illegal by pointing to illegal content, then isn't the DNS provider also guilty by referring a user to a site with illegal content?

Re:Curious as to why this is needed (0)

Anonymous Coward | about 8 months ago | (#46411333)

If I post a link to a website that which at that moment doesn't host "forbidden" content but later does, am I liable for providing access to said "forbidden" content? Logic would dictate that a person can only be held accountable for their own actions, not the actions of another.

Who said logic had anything to do with this? This is about a bunch of lawyers seeing how far they can push legal interpretation. I just hope our first ammendment rights don't become a pious fiction in the process.

Hi DU! (0)

caveat (26803) | about 8 months ago | (#46405957)

sir pball here!

May a S.O.O.C.S. soon... (0)

Anonymous Coward | about 8 months ago | (#46406013)

Maybe a Sudden Outbreak Of Common Sense [rationalwiki.org] soon...

Re:Maybe a Sudden Outbreak Of Common Sense soon... (1)

advid.net (595837) | about 8 months ago | (#46406069)

Here is a /. collection of Sudden Outbreak Of Common Sense [slashdot.org]

Aiding and abetting, accessory to the crime (0)

Anonymous Coward | about 8 months ago | (#46406711)

No, your honor, I did not sell drugs to any kids. All I did was encourage them to show up at a party where I knew a bunch of drug dealers were waiting to give them free samples and tell them about how awesome drugs are.

Re:Aiding and abetting, accessory to the crime (1)

Opportunist (166417) | about 8 months ago | (#46407225)

Did you encourage them or did you inform them that there are these people? It's a hell of a difference. To pull the ever popular car analogy, when I see an unlocked car standing on the sidewalk it's a huge difference, legal-wise, whether I ask around the bystanders whether it's their car because it's unlocked or whether I tell everyone that there's an unlocked car and that they can take it.

What you say is that we must not inform kids about drugs because that alone would already count as "aiding and abetting", because we told them that these drugs existed and that they can get them on the street from dealers. That we told them not to do it would not matter.

makes no sense. (0)

Anonymous Coward | about 8 months ago | (#46407501)

A link simply says "Hey! the stuff you are looking for is over there!" Is it illegal to tell someone "Hey! The stolen goods you are looking for are over there!"

I think not. He did not steal the items, had no possession of the items.

Creative use of the 1st. Why not same for the 2nd? (1)

mi (197448) | about 8 months ago | (#46407825)

It is good to see continuing attempts to assert our freedoms based on the ever more creative and expanded interpretations of the First Amendment. If the book prohibits cooking a lamb in its mother's milk, then pepperoni pizza is not kosher either — alright...

But why is not the Second treated just as creatively? If the same narrow reading, that is being constantly applied to the Second, was applied to the First Amendment, your right to free speech would've been limited solely to petitioning the government — and only for the redress of grievances.

If, as is often asserted in some (highly moderated) /.-posts and elsewhere, the Second Amendment ought to apply only to muzzle-loading muskets and only if carried by "organized militias", why does the First cover the right to sell pornography?

Nothing against porn, but why is it a right, while keeping and bearing arms wherever I please is deemed a mere privilege — which the Executive branch in the States (and even smaller locales) may or may not grant and, even having once granted, may withdraw at any time without bothering with pesky Judiciary?

Re:Creative use of the 1st. Why not same for the 2 (0)

Anonymous Coward | about 8 months ago | (#46409601)

I know this may come as a shock to you, but most people don't think that speech and efficient killing machines are on the same level.

The former is about the ability to spread information, the latter is about being able to kill people quickly and with little effort.

Re:Creative use of the 1st. Why not same for the 2 (1)

Anonymous Coward | about 8 months ago | (#46409829)

I know this may come as a shock to you, but most people don't think that child porn and self-defense are on the same level.

The former is about the ability to abuse children easily, the latter is about being able to protect your own family when seconds count.

FTFY. See how easy it is to misrepresent someone?

Re:Creative use of the 1st. Why not same for the 2 (1)

mi (197448) | about 8 months ago | (#46413481)

most people don't think that speech and efficient killing machines are on the same level

They certainly are, as far the Constitution and other law is concerned.

Re:Creative use of the 1st. Why not same for the 2 (0)

Anonymous Coward | about 8 months ago | (#46409817)

When did you stop taking your meds?

Well, we can always hope (1)

wcrowe (94389) | about 8 months ago | (#46407957)

Good luck with that. A lot of things that used to be protected by the First Amendment are no longer protected by it.

Illegal words (1)

Impy the Impiuos Imp (442658) | about 8 months ago | (#46408669)

It's my understanding it's only illegal to stand there and say, "There's a drug house right over there", complete with pricing information, if I am a part of their operation, or trying to promote it.

Kids today... (1)

DaHat (247651) | about 8 months ago | (#46409099)

... and journalists don't seem to recall much history.

Back in the days of the DeCSS controversy, 2600 magazine was one who proudly hosted the code on their site... only to get slapped down by the DVD CCA who accused them of distributing the code in question.

Eventually 2600 relented and stopped hosting the code... but instead had links to places it could be obtained.

The DVD CCA was not impressed... and won again, arguing that such linking was also a form of wilful distribution of the code.

Re:Kids today... (1)

TheSHAD0W (258774) | about 8 months ago | (#46409523)

I remember this. The court ruled that a hyperlink was an automated system for directing people to the content.

2600 then took the links down, but published the bare URLs to the content, not as a link. I don't recall whether they went back to court over that.

Not Ripe (1)

stevejf (2724307) | about 8 months ago | (#46409713)

This shouldn't be on slashdot . . . yet. The article merely talks about what his own attorneys are planning on arguing in court. I think he has a solid case, but let me know when a court hands down a real opinion.

If that's the case.. (1)

pouar (2629833) | about 8 months ago | (#46410785)

"Hyperlinks Are Protected By the First Amendment" If that's the case, then everything on thepiratebay.org is perfectly legal. Torrents and magnetlinks are esentially hyperlinks for the BitTorrent protocal.
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