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.