Slate, Please Don’t Sue Me for Linking to Your Article about Getting Sued for Linking! Or to the One on Child Pornography!
In this week’s stupid-scary tech news, Slate magazine reports on a case about a Web start-up that was sued by a law firm for linking to publicly available biographies on the law firm’s website. The law firm argued “trademark infringement” on the grounds that visitors would think that the start-up was associated with the law firm.
Lolz, right? The Internet is all about linking; it is one of the major reasons why it is a more powerful platform for communication than traditional print. Anyone who’s been on the Internet for more than a few minutes gets the hang of the fact that anyone can link to anyone without implying or intending affiliation. And while individual communities have developed etiquette about how and when to link to others’ content, then, in general, it is understood that publicly available content is fair game. It is, after all, publicly available. The right to link is rather like the right to point at a painting hung in a museum and say, “Look at that!”
When I first saw the headline (via MSN) about the potential illegality of linking, my first thought was that it was another version of the hoax about how the U.S. Post Office is going to charge 5¢ per email in an attempt to recoup lost revenue from the rise of electronic versus snail mail: Shrieky panic caused by the fact that the Internet still sometimes seems too good to be true as a platform for information and communication.
Unfortunately, this one can’t be filed away under Hoaxes and forgotten. When the judge refused to dismiss the case and after incurring six-figure legal fees, the small start-up was forced to cave to the law firm’s pressure and settled the case, agreeing to format any links to the firm’s site in a specific manner, as determined by the law firm.
While it’s not time to hit the panic button yet, this opens a scary-big can of worms. The original article sums it up best:
Paul Alan Levy of Public Citizen described the lawsuit as a “new entry in the contest for ‘grossest abuse of trademark law to suppress speech the plaintiff doesn’t like.’ “
Writer Wendy Davis goes on to note,
But in a larger sense, [law firm] Jones Day won. The firm gained control over how an online publisher builds hyperlinks. The actual change Jones Day wrought may be small, but it signals to companies that they can force sites to revise their linking styles by alleging trademark infringement. And Judge Darrah’s decision not to dismiss the suit signals that Web publishers may have to spend significant sums to deal with this kind of litigation.
Just like net neutrality, I see this as another sign of the squirming discomfort felt by those who are accustomed to buying gold-star treatment with their fat wallets. That doesn’t happen online. We are all, in theory, on equal ground here. With a domain name, a plot of Internet real estate, and a little bit of tech-savvy, my theoretical start-up Dawn’s Dusty Books could compete with giants like Barnes & Noble and Amazon. This isn’t true offline, where I can’t afford even a tiny shop on the back of a Carroll County strip mall. If something like this were to take hold, the burden it would place on small Internet outlets (like me!) would be insurmountable.
I hope that, should this sort of case ever come up again, it comes before a judge who might have used the Internet once or twice. (This judge, clearly, by his astounding ignorance of how the Internet works, never has.) Someone who will seal up this big bucket of worms with a nice red bow on top before little ways of privileging the financially elite online slowly bleeds dry those of us who can’t afford to bow and scrape to their every whim.
In slightly older news that is no less stupid-scary, Australia has finally figured out the answers to that thorny question of how to define child pornography.
As anyone who lived through the LiveJournal Strikethrough debacle of 2007 probably remembers, child pornography gets messy when one realizes that not all visual depictions of children intended for sexual gratification involve real children. What to do about squicky drawings of underage Harry Potter doing naughty things with Professor Snape? Our gut instinct often seems to say that such drawings could only be made by Bad People™ who, by their ready association in our minds with those who abuse real-actual-living-breathing children, deserve to be punished.
Well, those of you who rolled your eyes at Strikethrough and proclaimed, “Only on LiveJournal! Only in fandom! Only there could such idiocy take hold!” might be disappointed to learn that, a year-and-a-half later, you are proven wrong on that. The Supreme Court of New South Wales, Australia, recently affirmed that fictional images can count as child pornography. Yes, a major nation is waging a Strikethrough, only the penalties are criminal convictions, not getting booted from an Internet site. The case in question involved children from the television show The Simpsons engaging in sex acts, so it’s not even that these are visual depictions of children who might, somewhere in the world be real-actual-living-breathing children. No, this is Harry-and-Snape fake (without even the complicating existence of Daniel Radcliffe), and it is the same stupid-scary notion that drove Strikethrough.
William Saletan writes:
What’s happening to child pornography is what’s happening on the Internet and in software generally: Technology is blurring boundaries between action and thought, public and private, real and fake. … This gray area unnerves us, so we prosecute it. … I understand why we do this: We’re afraid that if we don’t prosecute cyber-perverts, they’ll move on to the real thing. But the danger runs both ways. How far will we extend felony prosecution into the realm of the private, the fake, and the abstract? If the Simpsons count as child pornography, what’s next?
The problem is that there are plenty of perverts who skipped cartoons straight to the “real thing.” And, in the economic crunch, as public safety budgets are being slashed to save states’ money, we’re going to be stretching thinner and thinner to apprehend people whose actions have lifelong consequences for their very real victims far beyond someone’s refined sensibilities being insulted by a naughty drawing of Bart Simpson. I know because, when I’m not being all heretical and stuff on the Internet, I work for a law enforcement agency. I see the amount of time, energy, and resources that goes into investigating child sex offense cases and apprehending offenders. Indeed, some of that time and energy is mine! Sometimes it seems there just aren’t enough hands to go around or enough hours in the day. Do we really want to devote fewer hands and less hours to the people hurting real kids in order to go after those whose idea of what makes attractive, funny, or sexy artwork might raise our eyebrows but, in the end, harms no one?
Furthermore, it is an insult to the victims of actual pedophiles to associate an injury done to them that may well last a lifetime with … drawings we don’t like? I don’t know about everyone else, but my outrage against child sex offenders originates with the harm done to the most vulnerable members of our society in the name of the sexual gratification of their abusers. It has nothing to do with aesthetics; it has nothing to do with thinking that something is icky or immoral but with harm done. Sorry Bart, but confusing the two is a slap in the face to the real victims of childhood sexual abuse.
lease, come inside my humble cottage and have a seat by the fire. Many are the stories here, and they are not the sorts of stories you'll often hear beyond these walls. Yes, the world is listening--and judging--but do not worry. You are safe here. I am the Heretic Loremaster. I read the same books as everyone else, but I read them a little differently: I don't necessarily take them at their word. I like to look at the stories that build our mythological history from the eyes of those disfavored by that history.
Over here we’ve jumped through the legal hoops of the legal responsibility for the content of pages linked to and the legal meaning of linking years ago.
The result was that every website has to add a disclaimer that they claim no repsonsibility whatsover for the content of linked website and that links are no claim of ownership etc etc
Currently we’re fighting a new idiocy: you know the nice plugin that allows you to subscribe to comments via email with checking a box? Illegal in Germany. You MUST have a double opt in routine (activation via separate mail). And there are lawyers actually serving notices (costs you a few hundred Euro) to BLOGGERS for not having a double opt in procedure…
Eeet eees bizarre.
I’ve seen those notices (on your LJ!
) about links. I had no idea that there was the weight of actual law behind them. I’ve always included the first half (about not being responsible for linked content) on the SWG ToS simply because I know how people are: They click on a link to someone’s LJ in a profile and see content they deem “pornographic” and decide to make things rough for us for “allowing” such links. Writing a ToS, I’ve often thought, involves putting oneself into the heads of the stupidest and most ignorant people … but even I would not have thought to warn against claims of ownership to linked content!
In the end, I’d be much more comfortable with such a disclaimer than companies possessing the right to determine how links to their sites are formatted … :^S
The second thing is un-frickin-believable. If I’m understanding correctly: They want people to be able to subscribe to comments by sending an email and not checking a box? Erm … what exactly is the point of that? Making life easier for people whose computers can’t handle an HTML ticky-box? (Is that anyone these days??) Or am I missing something here?
Well, The Heretic Loremaster being what it is–a half-assed weble run by an overworked student/public servant–I don’t even have anything so nice as an option to get emailed comment updates at all.
This seems almost like the ‘gateway drug’ theory for keeping marijuana illegal, which is that the DEA and law enforcement folks aren’t really worried that much about people using weed, but they’re worried that gosh darn it, those wacky kids might go on to use heroin or crystal meth or something even worse! Let’s ignore the fact that marijuana has legitimate medical uses – we’ll make a chemical derivative of it that doesn’t work as well and force physicians and patients to jump through a ton of hoops to get it – because it somehow feels better to certain lawmakers to do that than it does to just let folks smoke a joint.
The implication that folks looking at artwork involving the *Simpsons* are going to graduate to child molestation is just as ludicrous – and as you said, it really insults the victims, some of whom still have flashbacks and can’t get past that trauma enough to have necessary medical procedures done without *general anaesthesia* forty years later.
*shakes head* Morons.
Yes! And (I know I’m telling you what you already know) that is so not how pedophilia–or any paraphilia–works. They don’t just arise from looking at cartoons. If only it was that simple!
My family was plagued by a pedophile. My sister and I were unharmed, but others of my cousins were not so lucky. So to see a complex problem so simplified and the actual suffering of real people equated with cartoon fantasy … yes, I personally find that deeply insulting, on behalf of people whom I love that matter more than cartoons.
I suspect a lot of it has to do, too, with public pressure to do something, anything. I’m a statistician for a law-enforcement agency, so I know firsthand the pressure put upon public safety officials to show progress, especially where it matters. (And, I’d dare say universally among Western nations, sex offenders are definitely one of the areas “where it matters.”) The question often seems to be, “What will we tell the media?” rather than an honest assessment of “Is what we’re doing really making any difference?”
(And, this is veering OT, but I totally agree with you on the marijuana issue too!
Adding to that the fact that if we spent less time chasing dumb kids who got caught with weed in their pocket (or suffering people using it medicinally), then we’d have so many more resources to go after real criminals. Like, um, pedophiles?)
I remember when I was taking yet another one of those “intro to how to do things you should really already know at your age” segments of some writing class that taught how to give credit where credit is due. One of the notes was, “As of right now, it is not necessary to get permission to link to a web site. But if you are unsure, it doesn’t hurt to ask.”
My first thought was, “Good gravy. If I had a web site people wanted to link to, I’d be ticked off if I kept getting e-mails asking me for linking permission, and why the hell would I want to waste space giving a disclaimer saying, “Link away!”?
Sheesh. As much as I tend to see red when some wank community links to someone’s personal (public) LJ to point and laugh, really now…
It was (but so much has changed so I don’t know if it still is) in the LJ ToS that one could only link to another person’s LJ with their permission. I remember a lot of muttering about that when critique of LJ in general had reached a dull roar and I remember thinking then (as well as now) that that really possessed the power to stifle conversation. I mean, it’s often weeks before I get to comments on my LJ and, while I try to reply faster to those that require it, if I happen to actually be away and not simply swamped, it sucks to be pushed out of the loop by the rather misguided idea that someone needs my permission to point out something that I’ve done in public.
It seems, to me, one of those rules aimed at protecting people from their own stupidity. Rather like standing naked in the town square with a sign around my neck, “Don’t point out that I’m standing naked in the town square.” Imho, with the serious and long-lasting consequences that stupidity online can generate, people need not be sheltered from those consequences and should get used to thinking carefully about everything that they put up online.
This happens when these cases are decided by lawyers who’ve never even heard the word “Google” and have no idea how the internet works. I’ve no other explanation how these things can happen.
But that does call to mind a rather creative solution to the dilemma of companies wanting to control how they’re linked: If they impose such restrictions, then search engines have the right to exclude them. So let them choose between wanting minute control of how they’re linked with the ability to be found when they want to be.
Not like it would happen, but I can dream!