Is Linking Illegal? Free Speech6/16/2000; 9:36:41 AM "But suppose one of those [newspaper sites] contains material alleged to be illegal--a pirated copy of an author’s book, perhaps, or an unlawful software program. Is the publisher who did the linking in hot water?" ...

"The court’s decision, which is expected in the next week or two, will set an important precedent in the fast-moving area of linking law, according to legal experts."

This has been a long time coming. You probably know both sides of the issue already... Link Ban Threatens Free Speech from a while back covered it.

I'd like to examine the lawyers arguments that the links should be banned...

"[T]here is nothing illegal about linking as such," wrote the lawyers for the studios. But there are two main differences between Corley’s links to DeCSS and other news organizations’ links to the program, they maintained. For one thing, Corley’s actions, taken as a whole, actively encouraged others to make copies of DeCSS in an effort to disseminate the controversial code, wrote the movie studio lawyers. As evidence, they pointed to Corley’s massive list of links and his apparent invitation to his readers to create mirror sites of DeCSS." ...

In addition, Corley--unlike other news organizations--was already subject to an initial injunction barring his posting of DeCSS.

I submit to you that there is only one importent argument there, not the two they claim. Corley was under a court order, and seems to have violated the spirit of that order. Regardless of my belief that that Corley's overall position in the trial is correct, we are not dealing with the issues of the trial, we are dealing with a direct court order. When the court orders you to do something, you do it, and you don't play stupid games if you value your hide. In terms of the judge's order, he probably can be seen as running an end run around the judge's intent.

As the New York Times article points out, judges have wide latitude in enforcing their orders. They can decide that actions that would normally be legal violate the spirit of an order. Thus, even if the court finds that Corley must remove links, we need not panic and predict the end of the web, because it is only an enforcement of a previous court order, not a wide-ranging general precedent (yet). However, I think it is vital for the court to make clear that the illegality stems from the encouragement of others to obtain DeCSS in violation of the spirit of the court order, and to make it clear that the linking was not at fault whatsoever.

In other words, it was not the 'language' Corley used (the language of linking on the web), it was that Corley said things disrespectful of the judge's order, and thus disrespectful of the law, with that language. If the judge issued a clear judgement of this nature, it would not threaten the web one iota. I think he should order Corley to remove the links on the basis I described above.

(PS: There's enough real problems to deal with, let's not manufacture new ones.)