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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.
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.
> " 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 : )
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.
Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
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
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.
[superfluous-tag-that-will-be-ignored]
Putting HTML tags inside square brackets is a "standard" now ?
[/superfluous-tag-that-will-be-ignored]
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".
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
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.
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.
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.
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), 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.
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'
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!
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
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.
"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.
Cool! Amazing Toys.
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.
Some drink at the fountain of knowledge. Others just gargle.
I already anticipated your response in a post further down the page. 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.
Some drink at the fountain of knowledge. Others just gargle.
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.
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.
Good, inexpensive web hosting
Neither should you underestimate the technological sophistication of the Supreme Court of Canada ("SCC"). This is the same court that recently, in R. v. Morelli, overturned a warrant for child pornography on the basis that the contents of an internet browser cache does not constitute possession.
This court also, 4 months ago, decided in Grant v. Torstar Corp. to create a new defence against defamation of "responsible communication on matters of public interest". This new defence allows citizens (including bloggers as well as traditional journalists) to publish critical statements that may not necessarily be true, but are made in good faith towards the public interest. If this defence existed in the UK, then the British Chiropractic Association would not have been able to sue Dr. Simon Singh for scientifically doubting chiropractic claims of success.
A few years ago, the SCC issued a decision in CCH v. Upper Law Society of Canada, that clarified the "fair dealing" defence in Canadian copyright law. That case dismissed an allegation that merely placing a photocopier in a library was an inducement to copyright infringement.
Finally, the SCC itself has incorporated technology into its proceedings. The work flow is paperless; documents must be filed digitally. The court is outfitted with terminals at every station, and the documents are viewed on screens. Selected hearings are broadcast over the internet.
Yes, IAAL, and a GNU/Linux user to boot. It bugs me when people automatically assume that lawyers are technologically inept.