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Linking Is Not Copyright Infringement, Boing Boing and EFF Tell Court (torrentfreak.com)

Posted by msmash on from the shape-of-things dept.

An anonymous reader shares a report: The popular blog Boing Boing has asked a federal court in California to drop the copyright infringement lawsuit filed against it by Playboy. With help from the EFF, Boing Boing argues that its article linking to an archive of hundreds of centerfold playmates is clearly fair use. Or else it will be "the end of the web as we know it," the blog warns. Late last year Playboy sued the popular blog Boing Boing for publishing an article that linked to an archive of every playmate centerfold till then. "Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time," Boing Boing's Xena Jardin commented. Playboy, instead, was amazed that infringing copies of their work were being shared in public. While Boing Boing didn't upload or store the images in question, the publisher took the case to court.

12 of 90 comments (clear)

  1. Stallman disagrees by Anonymous Coward · · Score: 5, Funny

    Tell that to RMS / FSF, they think linking (with GPL software) creates a derivative work.

    (Yes, I know that's a different kind of linking)

  2. If only Google would act for the good by RhettLivingston · · Score: 4, Insightful

    The whole linking debate would be over if Google would just stop showing any links in searches to content from any organization complaining about linking.

    1. Re:If only Google would act for the good by nctritech · · Score: 3, Informative

      They have done this before and it was quite successful...and quite humiliating for the people that tried to put Google into a bent-over position. It's a classic case of someone's hubris blinding them to reality; they need Google a LOT more than Google needs them.

    2. Re:If only Google would act for the good by nctritech · · Score: 2

      It is not illegal to tell someone how to do something illegal or who they can contact to do something illegal. It is illegal to incite them to perform an illegal act. Example: telling someone how to shoplift is legal while attempting to make someone shoplift is not. (I personally don't think that either should be illegal.) Linking merely tells someone where something is and vaguely alludes to its content; it's no different than a footnote in a paper or a card in a card catalog. A link does not incite someone to break the law. If the site linked to is guilty of copyright infringement then that's that site's legal problem, NOT the site providing the link.

      Secondary copyright infringement does not exist under US copyright law and if it were it would be a very dangerous thing that would effectively end the web as we know it. If a hyperlink's destination content changes to something illegal then under secondary copyright infringement you'd be liable for the same offense as the purveyor of the new content even though you had no way to know it changed. Links go dead, park, or change every day by the millions.

      If this is allowed to stand, we effectively lock good faith reporting, commentary, and criticism behind a giant copyright paywall. It flies directly and aggressively in the face of the First Amendment protections on freedom of speech and the spirit of the Fair Use Doctrine of US copyright law. You can bet your ass that secondary infringement litigation would not be limited to cases like this; it will be used as a bludgeon whenever possible to stifle speech.

    3. Re:If only Google would act for the good by BronsCon · · Score: 2

      Bingo. If someone asks me "how would one dispose of a body" and I happen to know a good way of doing that, I'm fine if I share that information. On the other hand, if they ask "how can I dispose of this body?" I'm best not answering that question and, instead, going to the police. One is simply asking for information which might be used to commit a crime; the other is asking for information which almost certainly will.

      It's basically the same concept (though governed by different laws) that allows gun shops to sell guns while requiring them to deny the sale to anyone they believe might be seeking to buy a gun with the intent of committing a crime. Yes, any gun could potentially be used in a crime, but if a guy comes into your shop talking about robbing liquor stores you can be fairly certain any gun sold to him will be used for that purpose.

      --
      APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
  3. What is a number? by El+Cubano · · Score: 4, Insightful

    The summary got me thinking about "what is a number?" I have heard that argument that you should not be able to patent software because that would be equivalent to patenting a mathematical formula. An image, or song, or any other digital representation of anything, though, is just a number. Can I copyright a number? What about the number 7? The number 5,725,783,997,523? What about 2^4357393-1?

    If I can't copyright any of those numbers, then why/how can an author copyright an electronic composition, or how can a musician copyright a digital recording of his or her work, or how can a photographer or artist copyright a digital image? Can a movie studio copyright their CSS decryption key so that they can issue takedown requests under the DMCA? Can I only copyright a number if it is sufficiently large and unique? Can the most recently discovered Mersenne prime be copyrighted?

    I am not trying to be obtuse. I am genuinely interested in how people think about this rather complex and interesting issue.

    1. Re:What is a number? by nctritech · · Score: 2, Insightful

      It is not the numbers themselves, but the arrangement of those numbers that is copyrighted. The same logic applies to a book (or even your essay on how you discovered that un-copyrightable Mersenne prime). The components of the book (words, letters, symbols) are not copyrightable but the specific arrangement of thousands of those words into a book certainly are. Words, symbols, numbers, a graph of a mathematical function are all trivial and cannot be copyrighted, but putting all of those together in a particular manner creates something far more unique and meaningful than the individual bits.

      If you want to extend your analogy to its logical conclusion, ALL things are made up of atoms and all of those are made of subatomic particles, none of which can be copyrighted, so by your proposed standard literally nothing can ever be copyrighted because all things are made up of subatomic particles.

      I hope that was helpful.

  4. Linking should never be considered infringement by nctritech · · Score: 4, Insightful

    To use an analogy (those always work well, ha) there's a huge difference between saying "this is how pipe bombs are constructed" and "we encourage you to use pipe bombs on people" but linking isn't even that; linking is "here is where you can find a page that tells you how pipe bombs are constructed." To put it another way, it's the difference between giving someone a drug dealer's number and actually dealing drugs. It is insane to consider linking "copyright infringement" especially since the place linked to is completely out of control of the linking party. This song and dance has been played out before.

  5. The issue was settled in 1997 by Anonymous Coward · · Score: 2, Interesting

    Tim Berners-Lee, creator the Word-Wide Web, settled this question over 20 years ago.

    https://www.w3.org/DesignIssues/LinkMyths.html

    In particular, he pointed out that it is "a serious misunderstanding" to think that "A normal link is an incitement to copy the linked document in a way which infringes copyright". But here we are, 20 years later, and people are still making the same argument. Will it never end?!??

    1. Re:The issue was settled in 1997 by Anonymous Coward · · Score: 4, Informative

      Tim Berners-Lee doesn't get to decide the laws of a land he is not a citizen of.

      Tim Berners-Lee was not "deciding the laws", he was drawing conclusions from the currently-existing laws. But there is a seemingly endless parade of corporations that want to change those laws. The corporations just keep trying again, again, and again. It's been over 20 years, and they're still trying to make linking copyright infringement...

  6. Actually quite apt for this comparison. by Anonymous Coward · · Score: 3, Insightful

    The Library Linking clauses in the GPL/LGPL are there because the programs rely on the libraries in order to provide some of their functionality.

    In the case of the boingboing article, the 'program' is accessing the archive of centerfolds (the library) to provide a key piece of functionality, in this case the definition of how our perception of beauty has changed over time as it related to the female body in adult magazines.

    As such, based on the GPL definition of linking, if that definition was based on the legal fundamentals of linking to copyrighted works in written literature, it does in fact cause the boingboing article to be a derived work and thus fall inside the legal definition of infringement.

    IANAL though, so someone with a better understanding of copyright law and specific court cases dealing with this sort of issue would be appreciated.

  7. Re: I'm torn on this issue by hackwrench · · Score: 4, Funny

    Show us on the doll where Boing Boing hurt you.