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Landmark Canadian Hyperlink Case Goes To Supreme Court
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.'"
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!
Here in the U.S. we routinely send important cases up to the Supreme Court for decision.
So WTF is Wayne Crookes anyway and what's his beef?
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.
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)
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
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.
This is my sig.
like Parks Canada, eh?
> " 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.
------ The best brain training is now totally free : )
[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.
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.
I am TheRaven on Soylent News
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.
Jumpstart the tartan drive.
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:
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.
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.
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.
Would that be the <EH HREF...> ... </EH> tags?
Village idiot in some extremely smart villages.
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.
"Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket." -- Eric Hoffer
Not much of a stretch now to say that footnotes also constitute publishing.
URLs map ascii codes to web pages that return characters. So http://ascii.org/65 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.
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 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.
The BC court had it exactly right.... links are analogous to footnotes, and *NOT* the same thing as publishing the other material.
File under 'M' for 'Manic ranting'
What's the name of this boader?
The boarder seems like a pretty poplar guy.
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!
I thought this was pretty funny, not flamebait.
Jonathanjk.com
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.
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.
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
Yeah right. nplz.
Damping absorbs vibrations. Dampening is caused by moisture.
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.
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
Population of Canada: 33.3 million
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.
"with their freedom lost all virtue lose" - Milton
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.
http://www.playboy.com/
Huh huh huh I just "published" porno on slashdot.
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.
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.
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.
Some drink at the fountain of knowledge. Others just gargle.
Restrictions on hyperlinking would probably crush Google's business model. Not much else there other than links.
Well yeah... that's the idea. The gatekeepers are in grave danger (is there any other kind?) of losing their power.
For justice, we must go to Don Corleone
"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.
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
What if you use tinyurl or the like? You're not linking to the site then, you're linking to a link.
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.
Ward
. Silence! Be thankful thy species is unpalatable! .
So, thus affect is a verb, while effect is a noun.
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.
Where are we going and why are we in a handbasket?
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....
Three Squirrels
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.
If Google really cared they would fix Android Chrome to reflow text, instead of discriminating
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.
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.
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.
Webcomics Posted Monday-Friday http://www.lunatechfringe.com
You seem to be using a different measure of "not even close" than most people.
Canada: 75 dBpeople
LA: 72 dBpeople.
That's less than 3 dB difference. That's pretty close.
Can you be Even More Awesome?!
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
Population of Canada: 33.3 million
Yes, but less than half of Canadians are "people".
If you can forbid linking to your content, and forbid Google et al from crawling and archiving your content, and you can control what your own site's search engine returns in the way of queries, then you can make content that would be a liability if the public were able to, say, compare what you said then to what you say now...go away.
I would image that there is at least one media or news corporation that would like to have that ability.
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
I see a hyperlink as a reference. I draw the parallel for a library, where the index card contains the isbn number, the stacks location of the document, and some other relevant information (author, year, etc). So this result from the judge was applying common sense.
Leslie Satenstein Montreal Quebec Canada
This is insane, of course. If I link to your website, I'm just telling people where to find it. To say that one cannot link to your address would be to say that you're allowed to restrict people's speech. It would be like having a secret street address which cannot be said out loud. Absurd! Batshit insane!
Don't piss off The Angry Economist
Leave it alone anony mouse, as soon as those amricandians realise canadian beer has more beer in it, and canadian gallons are 20% bigger, where the hell will that leave us ? ? ?
carbon-based life was probably a pretty dull affair before the cell wall
So, if I tell you about a good book, am I in violation of the author's copyright? How do such absurd things manage to advance so far in the legal system?