Monday, September 17, 2012

Okay, linking now officially evil

A Dutch court has ruled that hyperlinking can be the same as copyright infringement.

I've done my best to explain the abstract nature of linking before.

The court does have something interesting to say, however, which does not make the ruling, in my opinion, as thoroughly asinine as it could be.  For one thing, they explicitly say that the issue is the profit motive, and "creating a new audience" for the material.

Basically, they say that if the site didn't link to the copyrighted material, the people who followed the link wouldn't have been able to pirate it from that location, because they wouldn't have known about it.  This is the "creating a new audience" part.

To paraphrase a post on Slashdot, this is equivalent to being arrested for pointing at somebody selling copyright infringing goods on the street.

I have a little more sympathy for the "for profit" argument.  If you read this blog, then you know that I advocate the unrestricted sharing of all copyrightable data for non commercial purposes.  It is the entire purpose of this work, in fact.  But that does not mean I am hostile to private enterprise, or making money.

There are a lot of cases that might be considered "grey area" when it comes to "making money from other people's copyrighted material".  This would be one of those.  But, as in other cases, I think it needs to be quite direct to meet that bar.

For example, let's assume the Pirate Bay makes a lot of money by linking to torrents of copyrighted material.  But the thing is, it's not any particular movie or music that it makes money from--it makes money by providing the information for lots and lots of stuff.

It is not the same as, say, selling tickets to a pirated movie.  Or selling counterfeit CD's on the street.  Or using a song in your car dealership's commercial without authorization.

Linking is pointing is speech.  It can't be illegal, because that would be insane.  Is it illegal not to pretend that something that is "wrong" doesn't exist?  Must we all walk around with mental blinders on?

So even though this court made an effort to not be completely asinine, it failed by definition by making linking a crime.  After all, if you run a forum, a user could post an "illegal link" that  you would have no control over.  Illegal links?  Really?  Can that possibly be the way to go forward?

No, this way lies madness.  Hopefully this will be overruled before it is used as a precedent.

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