July 25, 2000 12:40 PM PDT

Hollywood looks to kill hyperlinks in copyright fights

As Hollywood and record companies go all-out to protect their copyrights online, they've run up against one of the Web's most hallowed traditions: the untrammeled ability to link to anything anywhere on the Net.

A half-dozen high-profile legal cases revolve around the legality of links, as entertainment companies try to shutter Web sites or services they say are helping point people to illicit versions of songs and movies.

Two of these cases are making headlines this week: Napster meets the record industry in court, and hacker publication 2600 Enterprises finishes defending itself in court against the movie studios.

In each case, the industry is trying to win a ruling to pull links it says illegally contribute to online violations of copyrights, a legal step that courts have taken only rarely. As such, these cases hold the potential to put the brakes on the anything-goes nature of linking on the Web, free-speech advocates warn.

"What the Web is today is a collection of links," says Robin Gross, an attorney for the Electronic Frontier Foundation (EFF), which is helping defend 2600 Enterprises. "Where do we draw the line? We're all two or three clicks away from something illegal or from something someone doesn't like."

Attorneys say the potential for confusion is possible if the judges in any of the cases don't target their opinions strictly to the specific set of circumstances. But it's unlikely that judges would venture that far, many legal experts say.

"It all depends on how broadly the opinion is written," said Eugene Volokh, a law professor at the University of California at Los Angeles. "If an opinion is quite broad, it would interfere with a lot of things on the Web. But I don't think it's likely that a court would issue such an opinion."

The ability to link on the Web is largely taken for granted. Most mainstream publications--CNET News.com included--routinely provide links to other sites without fear of being held liable for violating those other sites' copyrights.

Throughout the medium's short history there have been sporadic attempts to rein in that freedom. Many of these have seen one publication sue another for using links to their articles as inducement to come to the front page of a less popular site. A string of cases has seen Ticketmaster sue rivals for linking to ticket-buying pages deep within the Web sites--so-called deep linking--thereby allowing customers to skip earlier pages with ads and sponsorships.

Most of these cases have been settled out of court, leaving no usable legal precedent. In Ticketmaster's recent case against Tickets.com, a California court ruled initially that linking alone could not be illegal, but that decision has yet to be finalized.

The one glaring exception to the rule has been a Dutch court, which ruled a year ago that links to Church of Scientology documents on the Web had to be taken down. The links alone, the judge said, contributed to a violation of the Church of Scientology's copyrights. That decision was binding only for courts in Holland.

Test cases
But at few times in the Web's history have there been so many high-profile cases, all of which have the potential to affect the rules surrounding linking. In each of these, entertainment companies and artists are seeking to retain control of the way their products are distributed, fighting what they say is large-scale online piracy.

The record industry is suing Napster and--along with see related story: Napster tests new copyright law the movie studios--Scour.net for providing software that directs computer users to copyrighted songs located on another computer user's hard drive. Although the file-sharing programs created by these companies aren't Web-based, they do provide the equivalent of a hyperlink that directs a surfer to another Net-connected computer.

The recording industry is also suing MP3Board.com, a more traditional Web company that offers a search engine pointing to music files on the Web, many of which are copyrighted.

The Motion Picture Association of America (MPAA) is also Napster wildfire suing 2600 Enterprises and its publisher, Eric Corley, to keep the publication from posting the source code for a software program, DeCSS, which allows DVDs to be played with the Linux computer operating system. The MPAA contends that this program facilitates copying of DVDs and therefore is a piracy tool, a claim the program's author and his supporters vehemently contest.

The judge in that case initially ordered 2600 Enterprises to take down the source code. But Corley immediately linked to hundreds of other sites that had posted the program. This was perfectly legal, the group argued, because the contested code no longer existed on their own servers.

The industry groups deny that they are in any way threatening the viability of linking. They're targeting businesses, not technology, they say. A judge ruling against the company would be ruling against a business model, not the practice of linking itself--and this could prevent the decision from being used as a precedent to broaden "censorship" of linking, they say.

"We don't view any of these cases as anything like hyperlinking," said RIAA staff counsel Steven Fabrizio, speaking of his organization's suits against Napster, MP3Board and Scour. "All three of those are businesses based on piracy. The means of facilitating piracy is much less important than the media itself."

Many legal experts, including UCLA's Volokh, agree. A judge's decision RIAA: Technology isn't the enemy could be drawn narrowly enough that a company such as Napster could be held responsible for contributing to copyright infringement without setting a broad precedent that links to copyrighted material are themselves illegal, they say.

MP3Board contests this notion. If the Napster attorney turns tables on RIAA links it turns up as a search engine are illegal, then so could be the links turned up by a Yahoo or an AltaVista, company representatives argue.

"It is essential to the Net that there is an implied license to link to other Web sites," Ira Rothken, MP3Board's attorney, said in an interview last week. "Otherwise, any site that aggregates links would be guilty of copyright infringement."

Nevertheless, the Yahoos and AltaVistas of the world have been slow to support MP3Board or any of the other defendants.

Allies have in some cases come from the traditional media. The New York Times Co. has supported 2600 Enterprises' right to link to the contested DeCSS software, noting that it, too, provided links to the controversial code.

"(Blocking) these links would be an unprecedented impingement of first amendment rights," the EFF's Gross said. "This would be unprecedented in traditional media."

The MPAA and 2600 Enterprises are expected to wrap up their court arguments today or tomorrow. A judge could have a decision in that case as soon as a week or 10 days after that time.

Napster is slated to meet record industry attorneys in court tomorrow, where a judge will determine whether the music-swapping service should be temporarily shut down while the industry's case waits for a full trial.

 

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