[Politech] Ethan Ackerman on downside in Diebold opinion: hyperlinking threatened [fs]

From: Declan McCullagh (declan@private)
Date: Fri Oct 01 2004 - 21:31:22 PDT


-------- Original Message --------
Subject: RE: [Politech]  -  (small) Downside in OPG v. Diebold - 
hyperlinking still threatened
Date: Fri, 1 Oct 2004 21:47:07 -0400
From: Ethan Ackerman <eackerma@private>
Reply-To: <eackerma@private>
To: Declan McCullagh <declan@private>

Greetings Declan,

I thought you might be interested in one of the observations the OPG v.
Diebold court repeated in its opinion, one that (unfortunately) seems to be
rather common consensus among federal judges:
---Some instances of hyperlinking can give rise to claims of contributory or
vicarious infringement or inducing of infringement.---

This is not an idea new to judge Fogel's opinion - indeed he rather
minimizes it, relegating it to footnote 12 - but it seems to be taken as
unchallenged truth in more and more judicial opinions.

One of the requests that EFF attorneys (I suspect, thoughtfully and
intentionally) made in this suit was for a declaration that "Hosting
websites that link to allegedly infringing material is lawful."  (EFF's
complaint, at
http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/First_Amended_Complaint
.pdf)

The judge agreed that the hyperlinking was entirely OK in THIS case, but
recognized that hyperlinking COULD give rise to liability, and refused to
make a blanket declaration that hyperlinking is never a vicarious or
contributory infringement.

EFF knows what it is doing on this issue and just what could be at risk,
having addressed other threats to hyperlinking in the past.
((See www.mail-archive.com/politech@private/msg00896.html  for EFF
comments on a previous case.)


Why is this email more than an academic footnote?  It shows that
hyperlinkers can face liability under copyright law as CURRENTLY written.
Broadening the definition of inducement, as legislative proposals such as
S.2560 (the INDUCE Act) would do, only serves to further threaten acceptable
types of hyperlinking, not to mention the chilling effect it would have on
those links currently on the margin.


-Ethan Ackerman



-----Original Message-----
From: politech-bounces@private
[mailto:politech-bounces@private]On Behalf Of Declan McCullagh
Sent: Friday, October 01, 2004 1:04 AM
To: politech@private
Subject: [Politech] OPG v. Diebold: You abuse copyright law, you pay $$$
[ip]


[...]
Fogel's decision:
http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/20040930_Diebold_SJ_Ord
er.pdf

[...]

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