Techdirt. Stories filed under "links"

Spain Considers Making Digital Copyright Law Worse: Pleasing The US Again?

Glyn Moody — Fri, 1 Mar 2013 03:41:18 PST

We wrote a couple of weeks ago how some were arguing that Spain ought to go back on the "naughty" Special 301 list for failing to show any "positive developments" on the copyright front recently. By an interesting coincidence, the Spanish Internet Association has just published a leaked draft of proposals to make digital copyright law in Spain even harsher. Here's how the Web site ADSL Zone describes them (original in Spanish):

The new proposals have a clear intention: to amend the Criminal Code to allow criminal prosecutions of Websites that provide links. According to the leaked document it will be an offense to provide ordered listings and categorized links to protected content, developed for this purpose and involving an active and non-neutral maintenance and updating of those lists.

Interestingly, Google wouldn't be affected by the new law according to ADSL Zone, nor would "occasional links" be prosecuted. Of course, everything would then hinge on what "occasional" meant in this context.

There's also the following proposal:

Second, the paper seeks to limit the concept of private copying. This will require us to be in possession of the "original media". This is really incompatible with the current reality, since there are legal platforms like Spotify or iTunes where you do not have that "native support".

The concept of "original media" is meaningless in the digital realm, where files are copied many times as they traverse the Internet, or as people move them around on their storage media. How on earth would you prove that your digital copy was "original"?

Finally, there is a suggestion for making the copyright levy system not only worse, but in conflict with current EU plans to rationalize it:

no matter whether we copy or not, whether or not we have the "original media", the fee will be charged in any case.

In an age where storage media are becoming ubiquitous -- if Samsung's refrigerator is running Android, it must have storage -- such levies are anachronistic and harm innovation, so Spain's plans to push on with them is one more indicator that it's heading in the wrong direction. The big question, of course, is why it is doing this: is it simply the usual story of lobbyists' privileged access to government ministers who aren't interested in whether the new measures are fair or even effective? Or is this once more the heavy hand of America reaching across the water to put a little pressure on its Hispanic friends...?

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Irish Newspapers Budge Slightly: Now Say Links Don't Require Payment, But Snippets...

Mike Masnick — Wed, 9 Jan 2013 14:52:20 PST

Last year, we wrote about the insane position from the group Newspaper Licensing Ireland (NLI), which represents the major newspapers in Ireland, in demanding that a charity pay them for linking to newspaper stories. In the last few weeks that story has been getting more and more attention in Ireland, in part because a related, but different organization representing mostly the same Irish newspapers, National Newspapers of Ireland (NNI), made a submission to a government review of copyright arguing that linking is infringement if done on any kind of commercial site (so, yeah, they'd probably consider that link to their site infringement).

NNI made a submission to the effect that our view of existing legislation is that the display and transmission of links does constitute an infringement of copyright and our existing copyright law should not be amended in the manner discussed in the Consultation Paper.

Meanwhile, the lawyers representing the charity have noticed that NLI appears to have backtracked ever so slightly and are now saying that "links alone" are not infringement, but if you include any text, you've gone over the line. They've put up a new statement reading, in part:

For commercial use: NLI does not require a licence from any organisation which only displays or transmits links to newspaper content. A licence is required when there is other reproduction of the newspaper content, such as display of PDFs or text extracts.

Of course, whether or not they consider reproducing that text as copyright infringement is left as an exercise for the reader.

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Google To French Media: We May Have To Cut You Off

Timothy Geigner — Fri, 19 Oct 2012 05:35:14 PDT

If you're like me, you may have thought that France was simply a repository for cheese-eating surrender-monkeys. It turns out that's not true. They also have a wonderful court system that doesn't want to understand the digital world. That same French court system also managed to make a complete mockery of HADOPI, all while hysterically referring to their actions as "justice".

But French lawmakers now have a new target in their crosshairs: Google. Lawmakers are reportedly considering legislation that will force search engines to pay for sending French newspapers readers.

French newspaper publishers have been pushing for the law, saying it is unfair that Google receives advertising revenue from searches for news.

French Culture Minister Aurelie Filippetti also favours the idea.

This may be my favorite stance of all time. It's unfair that Google, a search engine, receives revenue on searches, i.e. their business, and it should instead go to news organizations that are not in the business of search but still receive the traffic. I am sure there's a word out there that properly describes the stupidity of this stance, but so far all the ones I'm coming up with involve the kind of language Mike keeps telling me I'm not allowed to use on Techdirt (which is [censored], by the way (oh, come on, really?)).

Google, because they don't exist in the same non-logic-ungrateful-verse, and after apparently spending some time reading our comments section and picking up on some suggestions there, is now letting France know that if they go through with the law, they'll simply exclude French media organizations from search results. In addition, in a letter to lawmakers, they added:

Google said such a law "would threaten its very existence".

Google France had said earlier that the plan "would be harmful to the internet, internet users and news websites that benefit from substantial traffic" that comes via Google's search engine. It said it redirected four billion clicks to French media pages each month.

Which leaves France with an interesting choice. Continue on with their proposed legislative silliness and forfeit all the traffic Google sends French newspapers via search results, or retreat from their position, thus proving my ignorant American stereotyping of them correct. Your move, France!

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French Publishers Want In On German Plan To Force Everyone To Pay To Link To News

Mike Masnick — Fri, 7 Sep 2012 07:13:43 PDT

We've been following (for years) this ridiculous German proposal to make sites that link to and/or excerpt tidbits from news websites to have to pay for the privilege of sending traffic to the sites. While it's a spectacularly short-sighted proposal that will lead to significant problems and costs (without much real benefit), it's no surprise that publishers in other countries are getting jealous and are seeking to get the same sort of deal. Apparently, the fact that this proposal is gaining steam in Germany has emboldened French publishers to start seeking similar rights in France with which they could demand that Google pay newspapers for linking to their stories with a snippet. In other words, these publishers see a chance at a cash cow from actual innovators, right into their pockets, if they can just convince the government that "well, Germany's doing it!!!"

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Microsoft Spying On Live Messenger Messages, Censoring Any Pirate Bay Links

Mike Masnick — Mon, 26 Mar 2012 11:28:00 PDT

It's really disturbing how some companies overblock certain content and feel that they have the right to insert themselves into your ability to communicate. A few years ago, we noted that Facebook had blocked any and all links to The Pirate Bay. When asked about this, the company said that due to the "controversy" around the site, it was going to assume that all TPB links were infringing and violated the site's terms of service. It looks like Microsoft is going down a similar route. Apparently you can no longer send a TPB link via its Live Messenger instant messaging tool. I've never used Windows Messenger so can't test this, but it's pretty ridiculous. Even more ridiculous is the explanation, as it apparently tells people that the site was "reported as unsafe."

As TorrentFreak points out, the whole thing makes little sense since lots of other content is perfectly shareable via Live Messenger:

Whatever Microsoft’s reason for monitoring private conversations and then swallowing Pirate Bay links, the Redmond-based company’s censorship policies are not very consistent. All of the other large BitTorrent sites remain unaffected, even though they offer content that’s identical to The Pirate Bay.

This is troubling on a number of fronts. First of all, a link by itself should never be considered infringing. There may be content at the end of a series of links that is infringing, but blocking at the link level is really extreme and dangerous. Second, of course, is the fact that not all TPB content is infringing. Yes, an awful lot of it is almost certainly infringing. But automatically deciding that all of it is and not letting people share such links is extreme and dangerous. Cutting off legitimate speech should never be an option. Finally, the really scary part is the realization that Microsoft appears to be monitoring content being shared in private communication between two individuals in an instant messenger conversation. It seems like a pretty strong reason never to use Microsoft's Live Messenger.

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Canadian Universities Agree To Ridiculous Copyright Agreement That Says Emailing Hyperlinks Is Equal To Photocopying

Mike Masnick — Tue, 21 Feb 2012 06:00:59 PST

In the past, we've written a few times about how Access Copyright, the Canadian collection society that gets revenue from universities for professors photocopying copyrighted works, and how it's been trying to increase rates by 1,300% by claiming that simply "posting a link" counted the same as making a copy. As we noted back in 2010, that's a crazy claim. Lots of universities decided to drop out of Access Copyright's system to avoid such crazy fees. However, not everyone decided to support this move. As a ton of you sent over, the universities of Western Ontario and Toronto have both signed agreements along those lines:

The agreement reached last month with the licensing agency includes provisions defining e-mailing hyperlinks as equivalent to photocopying a document, an annual $27.50 fee for every full-time equivalent student and surveillance of academic staff email.

As the article notes, it seems incredibly premature for anyone to sign such an agreement, since the Supreme Court is expected to weigh in shortly about Access Copyright's mandate and limits, so there's simply no reason to rush into such a ridiculous deal. But, even worse is the message this kind of agreement sends to students. Accepting the idea that emailing hyperlinks is like making a photocopy is a ridiculous message that only serves to make more young people mock copyright as being a law that makes no sense at all.

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Barnes & Noble Going Around Asking Everyone To Change All Links From Borders To B&N

Mike Masnick — Fri, 23 Dec 2011 15:48:36 PST

As you probably heard, Borders went out of business recently and Barnes & Noble purchased a bunch of Borders assets around its trademarks. Still, it was a bit surprising when we received an email this week asking us to change any links we have on Techdirt that go to Borders.com to redirect to Barnesandnoble.com:

Barnes & Noble recently purchased most of the Borders trademarks and intellectual property in a recent auction. As a result of this purchase, we started transitioning the Borders.com website to Barnesandnoble.com via redirects.

We noticed that your site is currently linking to http://www.borders.com/online/store/Home , and I’d like to reach out and ask you to kindly update your links to the corresponding URLs on Barnesandnoble.com. We have redirects in place for many Borders.com pages, so you can use that to help you determine the correct landing pages on Barnesandnoble.com.

To be honest, I absolutely could not recall ever linking to Borders, but I did some digging, and found that we did so... three and a half years ago in a post about Borders.com's last ditch attempt to try to be innovative with a different kind of home page. Because of that we linked to the front page of Borders.com. For a variety of reasons, it would be stupid to change that link. In the context of the story, it wouldn't make any sense at all.

But all of this makes me wonder why Barnes & Noble is wasting their time sending emails to people like this. If it wants to redirect people, just set up some redirects. Don't expect everyone to drop everything and go change ancient links.

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Game Developers Sue Baidu Over Links To Infringing Content

Zachary Knight — Wed, 23 Nov 2011 13:06:15 PST

In the latest round of content providers being unable to tell the difference between a link and infringing content, a Chinese game developers group, Content Provider Union (CPU), is suing the Chinese search engine Baidu for copyright infringement. CPU claims that Baidu has provided over 350 games for download and is liable for over $4.7 million in damages. In its defense, Baidu claims that it only provides links to 3rd party websites that actually provide the game downloads and is not liable for infringement that occurs at those sites.

This type of lawsuit is really nothing new for Baidu as it has been sued in the past and prevailed in court. Those court rulings stated that merely linking to infringing content was not enough to be held liable for infringement. Why these game developers think the outcome will be any different is anyone's guess. Perhaps these game developers should look to the music industry for some tips on what should be done. After losing repeatedly to Baidu in court, three major labels decided it would be better to enter a licensing deal with Baidu. I guess those labels realized that if people were using Baidu to find music, it would be better for those fans to be pointed to legal alternatives rather than infringing services. The same could work for game developers. If they were to partner with Baidu to offer a licensed game store or download service, those people who use Baidu to find games would be able to get them directly from the developers. That is a win for everyone. Let's hope that these game developers don't enter into the same vicious six year cycle the music industry went through.

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Author Puts Article Online, Insists That Due To Copyright, You Cannot Link To It

Mike Masnick — Fri, 11 Nov 2011 17:33:00 PST

BeeAitch points us to yet another misunderstanding of copyright law, though this one is more amusing than anything else. It comes from an article from 2005 written by one Dr. T. Matthew Ciolek, from Australian National University, and it's apparently about "trade routes." Honestly, it doesn't matter what the article is about. What matters is that at the very top, it says:

Note: due to copyright restrictions this page may not be linked from other online pages.

Then, at the very bottom, it says:

Copyright (c) 2005 by Encyclopedia of Globalization. Grolier Academic. All rights reserved. This page may not be linked from other online pages.

And, in neither case is that accurate. You absolutely can link to it as I have just now (and above) and (what the hell) will do again (just for fun). Sorry Dr. T. Matthew Ciolek, that's just not how copyright works. You are free to block anyone who comes via referrals from other sites (or block referrals from this site specifically). You're also free not to post your content online, or to bar others from republishing it (recognizing certain legal exemptions). But, nothing in copyright law says that you can order people not to link to your work.

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Canadian Supreme Court Says No Liability For Linking To Defamatory Content

Mike Masnick — Thu, 20 Oct 2011 05:00:09 PDT

You may recall the story of Wayne Crookes, a Canadian with ties to the Green Party and, apparently, rather thin skin. He was upset about some comments made about him on various websites and decided to sue all sorts of people and companies -- including Google, Wikipedia and others. Many of those were dismissed over jurisdictional issues, but he also sued Jon Newton, the operator of P2Pnet.net for merely linking to some of the posts that Crookes was so upset about. Newton fought back. In 2008, a district court ruled that merely linking to defamatory content is not defamatory. That ruling was appealed. In 2009, an appeals court agreed, again reiterating to Crookes that linking is not defamatory. And yet, that ruling was appealed again, and the Canadian Supreme Court agreed to hear the case.

In a ruling this morning, the Supreme Court, once again, explained to Crookes that linking to defamatory content is not, by itself, defamatory. As the court states:

I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.

Going into more detail:

Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked....

Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral - it expresses no opinion, nor does it have any control over, the content to which it refers.

As Michael Geist highlights at the link above, the Court goes above and beyond just explaining why hyperlinks don't represent defamation, but also explains how this is fundamental to a functioning internet and the concept of free speech.

The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged”. Hyperlinks, in particular, are an indispensable part of its operation...The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

Geist also wonders if this ruling might be expanded to cover other forms of third party liability around linking. As we've seen in the US and elsewhere, governments (and the entertainment industry) are keen to pin liability for merely linking to infringing content. While this case doesn't directly discuss infringement, if you were to take the words of the ruling and substitute in copyright, it seems like the same basic concepts should apply.

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Justice Department Threatening US Sports Blogs Because Commenters Linked To Streaming Content

Mike Masnick — Thu, 6 Oct 2011 11:57:54 PDT

An anonymous Dallas Stars hockey fan alerts us to the quite worrisome news that the Justice Department seems to think it's a valuable use of their time to threaten blogs and community sites that they could be held liable if anyone in their comments posts a link to infringing material. You can see it in a "Welcome" post on the Defending Big D blog:

Streaming Links:

This is something I'll address in a separate post, but we can no longer allow links to be posted to online streams of the Dallas Stars games. While we have yet to be contacted, other SB Nation sites have been contacted by the Department of Justice. Because our site is 'allowing' these links to be posted, we can be held liable.

Now, this raises all sorts of questions. Why is the Justice Department threatening blogs like this? Was it really the Justice Department, or was it ICE (a part of Homeland Security)? What other sites have been contacted beyond SB Nation? What is the Justice Department saying to these sites and is it an accurate reflection of the law? And why don't SB Nation and other sites point out to the Justice Department that, under the DMCA safe harbors, there is a clear process for the removal of links to infringing content -- and it also provides safe harbors for the sites themselves?

My guess is that the Justice Department and ICE, via Operation In Our Sites, are trying to imply criminal copyright infringement here (otherwise, why else would the DOJ be involved?). But that's a much higher bar, and it's unlikely that a comment could be criminal copyright infringement. The link itself would have to be for profit, for starters. And while SB Nation or the site might make money, that's entirely separate from the action of the user. Either way, this is quite worrisome and seems like a massive step out of bounds by the Justice Department.

As the guy who submitted it wrote:

We fans want to watch our favorite hockey players play our favorite game. Since the NHL hasn't seemed to provide a convenient, reasonable means to watching games, "unauthorized" streaming exists. Why is the DOJ doing the NHL's dirty work? Some would argue that you can watch every NHL game on their streaming service, Center Ice. Wrong. You can't watch the team for the town you're in. You can watch everything BUT your local team. Since local teams are usually the teams that people want to watch, this renders Center Ice rather useless.

But that's the idea. They seem to think that if such things are useless due to government decree, then they can pretend that the world markets are not changing.

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Twitter Keeps Suspending Accounts Based On Highly Questionable DMCA Claims

Mike Masnick — Thu, 1 Sep 2011 14:11:33 PDT

Last year, we wrote about how Twitter was receiving a ton of DMCA takedown notices. That seemed pretty strange to us, because with such short messages, there's little that could be covered by copyright. For the most part, such notices seemed like an abuse of the DMCA, literally claiming that a link to a URL was infringing itself, which is a pretty big stretch. A link by itself hardly passes the inducement test. Twitter, as we noted a year and a half ago, unfortunately, appears to be giving too much credence to such notices -- especially in cases where the tweet is a link to a webpage which possibly links to content elsewhere. That's so far removed, arguing that Twitter is responsible in any way is just ridiculous.

Yet it appears that Twitter hasn't just kept up this practice, but has made it worse. There was a bit of a fuss among some popular hiphop blogs in the last few days as certain Twitter feeds connected to one such blog disappeared. That is, they didn't just take down the tweets in question, but flat out suspended the account. RapRadar, whose twitter feeds were impacted, was not at all pleased, posting this complaint on its website: If you can't read that, it says:

This lil blue bird keeps fuckin' with us! First you shut down our @RapRadar account cuz 50 and Em went "Psycho" and last night you wanna pull the plug on @RapRadarDotCom with no fair warning. Man, I thought it was gonna be smooth sailing like Chris Cross after a yellow nigga got verified. The kid @ElliottWilson is creepin' on 40K followers but you won't let my company breathe. This damn DMCA ain't nuthin' ta f' wit. For the record: No site has supported the consumption of music legally more than RapRadar.com. Yeah we've provided free streams from day one but no download links unless its a free release. We also link back to iTunes constantly. We play the game the right way and what do we get for it? Shit, I'm not opposed to a lil preferential treatment. Ha! Can we live?

So... at this point, it looks like a totally and completely ridiculous DMCA takedown claim. Let's connect the dots:

DMCA notice goes to Twitter, complaining about a tweet with a link in it
Rather than pointing out that a mere link is not infringing, Twitter suspends the account
That link doesn't even link to infringing content. Instead it links to a blog page
That blog page doesn't even link to infringing content. Instead, it links to official free releases, official streams... and iTunes for purchases.

Now, I recognize that Twitter is just playing the legal game here. If it receives a DMCA notice, it goes straight to takedown mode. Thanks to the way the DMCA safe harbors are written, it's tough not to obey a DMCA takedown notice, because otherwise you face legal liability if there is infringement. But it doesn't mean you have to take down the content. In bogus situations you can say so and refuse to take down the content (something that we've done in the past).

I reached out to Twitter to see if I could understand why they would suspend such accounts, and got a link to their DMCA policy, which states:

We respond to valid claims of alleged copyright infringement such as the unauthorized use of a copyrighted image as an account background or account avatar, or Tweets containing a link to allegedly infringing materials.

But that doesn't actually respond to the issue here. These were not links to infringing material. They were links to blog posts that linked to authorized material. Furthermore, Twitter told me that they provide those who are targeted with a takedown with "all info" from the claim including "who made it." This appears to be untrue. I've now seen a few of the takedown notices and they provide no such info, which makes this worse. Twitter users are forced to respond to questionable DMCA takedown claims on links to blog posts that aren't infringing, without even knowing who is issuing the takedown.

It seems like Twitter would have really strong reasons for refusing such takedowns. Twitter could easily point out that a link to a webpage is simply not infringing, thus they're not hosting any infringing content included in the DMCA notice. Instead, it doesn't just block that single tweet but suspends an entire account? That's ridiculous overkill... and exactly what whoever is issuing the takedown notice wants. Even worse, by not providing the information on who filed the takedown, the whole process is completely blind. It's censorship by DMCA takedown with Twitter helping out. That's really unfortunate for a company that has a history of standing up to legal bullies.

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RealNetworks Destroying Dutch Webmaster's Life Because He Linked To A Reverse Engineered Alternative

Mike Masnick — Fri, 26 Aug 2011 10:15:57 PDT

Via Slashdot, we get the story of a Dutch webmaster who is involved in a ridiculous lawsuit that RealNetworks (it still exists?) is putting him through. Apparently there's a bit of free software out there called Real Alternative which, not surprisingly, is an alternative player for Real Media files. RealNetworks hasn't been happy about this software for a while, even though it seems unlikely that many people still encode things in Real Media's format. Either way, the company was successful in scaring the main distribution source about a year ago and has since gone after others.

However, in this case, it seems pretty clear that they've gone way too far. They sued a Dutch webmaster, Hilbrand Edskes, not because he was hosting or distributing the software, but because he had a link to the software on a webpage he maintains that lists a variety of freeware programs. It's not hard to find all sorts of sites, including big names like CNET, that still distribute Real Alternative. Yet for whatever reason, it appears Real Networks chose to go after this guy for maintaining a list of freeware programs.

Making matters even more confusing and ridiculous, is that it appears that Edskes actually did remove the link when asked. Real claims he did not, but the company who seized his computers (after a judge ordered it, following a court filing from Real) admits that the links were actually removed right after he was told to remove them, and Edskes' hosting company also confirms, via its backups, that he removed the link. But Real still saw the link at a later date due to some DNS caching... so it's pushing ahead with the lawsuit. The article details how it's already cost Edskes €66,000 in legal fees, and Real is asking for about €210,000 in fines and for its own €75,000 legal fees.

Even if Real Alternative is infringing (a claim that I think is pretty questionable in its own right), it's pretty ridiculous to then sue someone just for linking to it, and to continue to sue him even after he shows that he removed the link in question. Real Networks was famous for having some nasty business practices and for forcing crapware on people, and it seems to be continuing that trend in the legal world as well.

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UK Appeals Court Agrees That Clicking A Link And Opening A Website... Is Infringing

Mike Masnick — Thu, 28 Jul 2011 09:53:25 PDT

Late last year there was a ridiculous ruling against news aggregator Meltwater in the UK. Meltwater, like a number of other news aggregators, pulls together headlines from various online news stories, along with brief snippets of the articles, and links to those articles, helping people find news relevant to them. It's your classic news aggregator. Meltwater focused on an enterprise market, helping companies or PR people keep tabs on what was being said about them or about topics of interest. Pretty standard stuff. But the ruling said that just headlines could be covered by copyright, and thus Meltwater infringed by simply showing headlines and links. I didn't write about it at the time, on the assumption that this was just a clueless ruling that would hopefully be overturned on appeal... but no such luck. The Appeals Court has allowed the lower court ruling to stand, meaning that anyone doing news aggregation in the UK may have to start paying newspapers for the "privilege" of linking to them.

This is, of course, ridiculous. Almost everything in the ruling is ridiculous, frankly. Let's dig into a few of the points from the original ruling, as highlighted by the Independent (first link above):

* The headlines to the various articles reproduced in Meltwater News were capable of being literary works independently of the article to which they related;

Generally speaking, in the US, we don't consider headlines to have enough creative elements to be covered by copyright independent of the article. And that seems reasonable. Does anyone honestly believe that copyright is necessary to incentivize the creation of creative headlines? The whole point of a headline is to sell the story. There's plenty of incentive there. Putting copyright on headlines makes no sense at all.

* The extracts from the articles reproduced in Meltwater News with or without the headline to the article were capable of being a substantial part of the literary work consisting of the article as a whole;

Meltwater News tried to get us as a customer two years ago, and sent us some sample reports, so I'm actually quite familiar with their "snippets." They are clearly designed to get you to click through, and not at all designed to provide a "substantial" part of the literary work. Here's a screenshot from a report they sent us: Yeah. I'm sorry, but those "extracts" are hardly "substantial," and they clearly do not suffice as a replacement for the original.

* Accordingly each of the copies made by Meltwater News' end-users' computers in receiving the e-mail from Meltwater, opening it, and accessing the Meltwater website by clicking on the link to the article, and the copies of the article itself made when clicking on the link indicated by Meltwater News was, on the face of it, a breach of the publishers' copyright;

Read that again. Especially the last part. The copies of the article itself made when clicking a link were infringing. There's no way to respond to that other than to say that's insane. That means the entire web is infringing. Any time you open any web page, according to this ruling, you are likely infringing on the site's copyright.

* Legislation dealing with temporary copies, or fair dealing for copyright material, or Database Regulations did not allow such copying;

If so, the UK really needs to fix its copyright laws, because that's crazy.

* Thus, the end-user required a licence from NLA or the publisher in order lawfully to receive and use the Meltwater news service.

And, thus, the web dies in the UK. But now, suddenly, I'm tempted to send a bill to any UK newspaper that links to Techdirt going forward...

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US Trying To Extradite UK TVShack Admin Over Questionable Copyright Charges?

Mike Masnick — Thu, 16 Jun 2011 08:30:28 PDT

In the latest example of US copyright interests gone mad, there are reports that there's an attempt to extradite the admin of TVShack from the UK to the US to face criminal copyright infringement charges. This is ridiculous on all sorts of levels. First, TVShack.net was one of the very first domains seized a year ago. TVShack did not host any content and was merely a linking site, which raised questions (as with other seizures) about whether or not it actually violated US copyright law. Also, TVShack has gone through a few different versions and (potentially) owners/admins. However, one of the admins, Richard O'Dwyer, a computer science student, was recently arrested. It's not clear if anyone even knows which instance of TVShack he's accused of running.

Where this becomes really troubling is that other, very similar sites have been found legal in the UK multiple times. Running a site that users use to put up links and which doesn't host any actual content, is not seen as illegal in the UK. So it seems particularly ridiculous that there's some sort of attempt to extradite the guy to the US to face charges here. As some have pointed out it appears to be "an attempt to make US federal laws applicable in the UK."

Unfortunately, the details of the extradition request are a bit muddled in all of the UK papers reporting on it. Lots of them are comparing the situation to the famous Gary McKinnon situation, but I think this is clearly different. This just seems blatantly vindictive for no good reason.

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Is It Rude To Link To Someone Without First Asking Permission?

Mike Masnick — Wed, 27 Apr 2011 10:20:51 PDT

Earlier this week, I wrote an analysis of some silly claims from Canadian IP lawyer James Gannon's sarcastic suggestion that copying money is just like copying content. Gannon stopped by in our comments... and oddly did not respond to a single point that I raised about his faulty analysis. Instead, he only commented to claim that it was somehow rude or discourteous of me to link to his piece and to discuss it without first asking for permission. I found this somewhat shocking. I've never heard that it's common courtesy to ask before you link to someone. Yet Gannon insisted that most people who link to him first ask his permission and he suggests, snidely, that his readership has higher "standards" in regards to how they view content.

Of course, when you combine this with Nina Paley's excellent post about how asking permission when none is needed is rude, it seems that we have a pretty serious disagreement here. Not surprisingly, I agree wholeheartedly with Nina and find Gannon's position both troubling and enlightening when it comes to his confused interpretation of intellectual property issues. He seems to think that a permission society is just fine. Those of us who actually create for a living know that this is not the case. It's a distraction and an annoyance when people feel the need to keep asking you for permission to do what they naturally have the right to do. Permission society is one that is less creative and less willing and able to create. Permission society is the exact opposite of what copyright law is supposed to create. It's not supposed to be a drag on creation. The whole point of things like fair use is that you don't have to ask for permission because it's inefficient to ask for permission in those cases. That he's suggesting that it's somehow discourteous not to ask for permission to do what the law clearly allows is really quite troubling.

In the meantime, has anyone actually ever heard that it's common courtesy to ask someone permission to link to them? I spend a lot of time online and I link to a lot of websites (over 38,000 posts last we checked...) and no one has ever suggested that I should have asked permission first.

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Italian Court Says Yahoo Is Liable For People Finding Infringing Movie Via Its Search

Mike Masnick — Wed, 6 Apr 2011 04:05:29 PDT

Slashdot points us to the details of a recent ruling in Italy that found Yahoo contributory liable for its search pointing people to an unauthorized download of a film. The details of the case seem a bit more nuanced than the short summary. Google and Microsoft were also sued... but reasonably dismissed from the case, since their Italian divisions had nothing to do with their search engines. Yahoo, however, apparently does do some search work in Italy.

As for the reasoning behind the decision, it seems to focus on a stretch of an interpretation of the EU's E-Commerce Directive, which indicates that a "caching provider" has to block links to content once notified that it's infringing. While the coverage is a bit unclear, it sounds like this is more difficult than a US-style DMCA notice-and-takedown regime, in that it appears that upon notice that some content is infringing, Yahoo isn't supposed to just take down that particular link, but all links that can reach that content. In fact, the explanation notes that Yahoo can't even link to another (legal) website that contains links itself to infringing works. Think about that for a second. It goes beyond secondary liability to something entirely different. I'd call it "head in the sand" liability, where someone seems to hope that by telling search engines they can't link to sites that might link to infringing works, it will somehow make those works hard to find. The reality, of course, is that it's just going to frustrate consumers, because search engines now have incentive to take down all sorts of perfectly legitimate search results to avoid liability. Given this and the ruling that found Google execs criminally liable, one wonders why any search engine operates in Italy at all these days...

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Feds Really Do Seem To Think That Linking To Infringing Content Can Be A Jailable Offense

Mike Masnick — Wed, 9 Mar 2011 08:31:53 PST

Last week we covered the somewhat surprising arrest of Brian McCarthy, the operator of Channelsurfing.net, on charges of criminal copyright infringement. As we noted at the time, this seemed like a pretty questionable charge. I could potentially see a civil charge against him using the court-created concept of "inducing" infringement (a concept that Congress rejected...), but there is no inducement standard in criminal infringement. It's possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard, and it's not clear that the feds have enough to make such a claim really stick. At the time, we didn't have the complaint, but the folks at DemandProgress have obtained a copy of the complaint, which we've also embedded below.

There doesn't seem to be anything there. In fact, the complaint against McCarthy seems to mostly be copied and pasted from the original affidavit used to seize Channelsurfing.net. As we pointed out at the time, that affidavit relies on the extremely questionable claim that merely linking to infringing content can represent criminal infringement. As Demand Progress notes, letting Homeland Security and the Justice Department claim that linking to or embedding content can be a criminal act should be horrifying to anyone who understands the very basics of how the internet works. Once again: they're not claiming that McCarthy made any copies. They're not claiming he distributed any copies.

Section 106 of the Copyright Act covers the six exclusive rights that copyright is supposed to provide. I can't see how McCarthy violated any of these. He did not reproduce the works. He did not prepare derivative works. He did not distribute the works. He did not perform the works. He did not display the works. At best, I'm guessing people who don't actually understand the technical issues will try to claim he displayed the works. But that's technically incorrect. No where on his server did he have or display any of these works. Instead, he pointed people to where the works were available. Some of his users may have seen displays of the works, but those were from their own browsers calling to entirely separate servers for those works.

So, as expected, the specific charges are incredibly questionable and seem to be based on a theory of copyright law that has been completely made up by Homeland Security and the Justice Department. That's kind of scary.

Homeland Security and the Justice Department clearly have gone way overboard here. Beyond the basic questions about the domain seizures (due process and First Amendment), now there are additional questions about them simply making up what they want copyright law to say, rather than what it actually does say. And when that leads to a conclusion that linking can be a jailable offense, it's time for them to seriously rethink their actions.

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Homeland Security Tries And Fails To Explain Why Seized Domains Are Different From Google

Mike Masnick — Fri, 4 Feb 2011 09:17:00 PST

The Marketplace radio show from American Public Media spoke to Special Agent James Hayes from Homeland Security, who was apparently in charge of the "raids" (if you can call them that) that involved the seizing of domain names under the legally questionable theory that linking to infringing material is, by itself, criminal copyright infringement. I've yet to find any legal expert who seems to believe that the law actually says this anywhere.

In the interview, John Moe asked Agent Hayes a very simple question: given that these domains were all seized based solely on the fact that they link to infringing content hosted elsewhere, and all of the same content is also linked from Google, will the Feds seize Google's domain name? Well, more specifically, Moe asks if ICE could seize Google's domain name. Amusingly, right after being asked, Hayes conveniently gets cut off, but he does call back and the question is asked again. You can hear the whole thing here: However, once he gets back, he tries to tap dance around this issue. Hayes says "no" that ICE will not seize Google's domain name and that's because it's only targeting sites that "don't do due diligence" to make sure that the content they're linking to isn't infringing. There's a pretty serious problem with this claim in that it's wrong on both sides of the equation. First off, Google, as a search engine, does no due diligence to check that links only go to non-infringing content. Second, in at least some of the cases (specifically in the case of dajaz1), we know that it was actually Homeland Security and folks like Special Agent Hayes who "failed to do their due diligence," so the songs named in the ICE affidavit were, in fact, provided by the labels or representatives of the musicians. In other words, according to Special Agent Hayes' own criteria, Google is more of a criminal operation that Dajaz1.

Hayes then goes on to repeat the long-debunked talking points of the industry -- insisting that anyone watching a PPV event without paying represents lost revenue. Apparently all the studies that say this isn't the case don't matter, so long as someone who directly financially benefits from Hayes' actions tells him otherwise. On top of that Hayes claims that this leads to lost tax revenue and jobs. Of course, this has also been debunked, since the money "not spent" on these events doesn't disappear, but is still spent in the market and, quite conceivably, ends up going to fund more jobs and industries with higher tax rates.

Also amusing is that Hayes uses this massively tenuous link to "tax revenue" to answer the question so many people have been asking: what the hell does Immigration and Customs have to do with a foreign website? The answer, apparently, is that ICE's mission is to protect the US Treasury and one part of that is to protect tax revenue. Of course, that argument makes no sense. By that same reasoning, when Henry Ford first started mass producing cars, Customs should have shut him down because it killed off jobs in the horse carriage industry, thus decreasing the tax base from that industry. Of course, everyone who thinks this through realizes that's silly, because the money didn't disappear, it shifted elsewhere -- to a more efficient arena, which actually resulted in economic growth and greater taxes. What Hayes and ICE are doing here is the opposite. They're holding back more efficient distribution systems, stifling speech and hindering economic growth, which actually will result in a smaller tax base.

Moe pushes back a little and asks Hayes if he thinks that linking is the same as hosting the content. Hayes doesn't answer, but simply says that they're targeting the sites that "get a lot of traffic," to which Moe reasonably shoots back: "Well, Google gets a lot of traffic." Hayes then makes stuff up about how a search engine is different, but that's based on nothing factual. He makes an artificial distinction and then finally states "well, it's a difference in our mind." Great, so because ICE is technically clueless and thinks there's a difference, it's all fine and dandy?

Moe then asks Hayes if he links to a site that has infringing content from his Public Radio blog, will ICE shut down the site. And Hayes makes a really weird remark that makes no sense, sayings that if Moe "gets advertising funds from a site that provides unauthorized content" then he might have to shut them down. But that's something new. We've seen no assertions or evidence that the sites that have been take down received ads from the other sites that were hosting the content. Is Hayes totally making stuff up now? It sounds like Hayes doesn't even understand what he's talking about.

Finally, Moe asks: if a site links and embeds to all the same content, but does not profit from it (i.e., does not have advertising), is it criminal? Hayes totally punts and says he'd have to check the law. Yes, really. So the guy is not an expert on the technology and admits he's not an expert on the law in question. So what is he an expert in and why is he leading these questionable seizures?

On a separate note, it's nice to see that Homeland Security is willing to chat with the press again after telling us that it will not speak about these issues because it's an "ongoing investigation before court." Apparently, Homeland Security was also lying to me (though, we knew that already).

What's scary about this is that every time someone from Homeland Security speaks on this issue, they display some pretty serious ignorance of the technical issues and of the specific details of the questions people are asking. They seem to get around these with wishful thinking about how -- in their minds -- these sites are "different."

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Would Twitter Be Liable For Links To Infringing Material?

Mike Masnick — Tue, 28 Dec 2010 11:51:12 PST

One of the issues that bothers many folks who pay attention to copyright issues is the growing belief by many copyright supporters that simply posting a link to copyright infringing material could itself be considered infringement. From a technical standpoint, this makes little sense. As you copyright geeks should know, US copyright law grants some specific "exclusive rights" to copyright holders in Section 106: to reproduce, to prepare derivative works, to distribute, to perform and to display (with some added specifics based on what kind of work it is). Still, I'm at a loss to figure out what linking to a work does? It's not reproducing the work. It's not preparing a derivative work. It's not distributing the work. It's not performing or displaying the work. So what part of copyright law does linking violate?

Anyway, the reason why I'm asking this now is that it appears that Twitter is suddenly getting swamped with DMCA takedown notices lately. I only discovered that after a recent TorrentFreak article about the top DMCA takedown senders as compiled by ChillingEffects.org. What struck me, in Wendy Seltzer's summary, was that she mentioned that the largest sources of DMCA takedowns are "Google, Yahoo, Digg, and most recently, Twitter."

The addition of Twitter struck me as odd. After all, how much copyright infringement can you do in 140 characters. Nearly two years ago, we had discussed the question of whether or not those "tweets" themselves could be copyrighted (which could lead to legal questions when people "retweet" your messages). We had trouble believing that fair use wouldn't apply to messages. Then, this past April, we had an interesting discussion after a guy named JP was upset that Twitter deleted a tweet of his that was merely a link to his own blog post, which discussed a new album that had leaked, and included (in the blog post, not on Twitter) a link to one song that was already widely being linked to on music blogs, including Pitchfork, as well as a link to Amazon where people could buy the album. The copyright holder had issued a DMCA takedown on the Twitter message, which we took to be an abuse of the DMCA process. Nothing in the tweet was infringing. Heck, you could argue that nothing on the blog post was infringing.

However, in looking down the list of DMCA notices to Twitter, the vast majority of them appear to be copyright holders complaining about tweets that link to their material hosted elsewhere. I did see one that involved a background image, which is a bit more understandable as a copyright issue, but I'm a bit troubled by the massive numbers of takedown messages solely on links. Why not just issue the takedowns on whoever is actually hosting the material? Targeting links just seems fraught with potential problems and it's still not at all clear to me that links, themselves, are really infringing.

Of course, it's likely that Twitter is removing the tweets in question in order to protect itself from liability. But I'm wondering if anyone actually thinks Twitter would be liable for copyright infringement if it didn't do that.

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Peruvian Blogger Sentenced To Jail & Fined For Linking To Articles About Politician's Past

Mike Masnick — Tue, 16 Nov 2010 09:31:55 PST

The Groove Tiger alerts us to the news coming out of Peru, of a blogger, Jose Alejandro Godoy, who has been sentenced to three years in jail and fined over $100,000 (Google translation of the original Spanish) for writing a blog post about a Peruvian politician, Jorge Mufarech. The post linked to various news reports of criminal charges made against Mufarech in the past, and Mufarech claimed that such links were defamatory. Godoy pointed out that the information he wrote about was well-sourced and came from others, and also that he had offered Mufarech a right to reply, if he wanted it. Yet, the court still found him guilty of criminal defamation, leading to the jailtime. Godoy is appealing, but just the fact that the case has gone this far should be seen as quite troubling.

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Brazilian TV Host Gets Court To Demand Google Censor Results Pointing To A Movie She Was Once In

Mike Masnick — Mon, 15 Nov 2010 10:49:54 PST

While we were encouraged by a proposal in Brazil that would make it much more difficult to get content taken down without a trial or giving whoever put the content up a chance to respond (and also by a proposal to make fair use equally as important as copyright), to date, Brazilian courts have a tragically bad history of enforcing censorship based on content someone doesn't like. Google, for example, has been on the losing end of lawsuit after lawsuit after lawsuit after lawsuit in Brazil -- and all of it over third party content.

The latest such example comes from reader Fabop, who notes that Xuxa Meneghel, a well-known host of a Brazilian children's TV show has been able to get the courts to issue an injunction against Google (Google translation of the original Portuguese) because she was upset at the results that came up when people did a search for "Xuxa pedophile."

If you're wondering why people would do such a search -- or why there were Google results on it, apparently, back in 1982, Xuxa Meneghel started in a film, Amor, Estranho Amor (Love, Strange Love) in which she played a pedophile prostitute who seduces an 11-year-old boy. Of course, that's factual information -- but she's upset that when people search on those terms, it returns articles about the movie, and pictures from the movie. This seems somewhat similar to the various attempts to create "right to forget" laws in Europe. Apparently, Meneghel has even been successful in getting the actual movie banned from distribution, even though the company who owns the film rights would like to continue distributing it.

Google is apparently a bit upset that this temporary injunction was issued without anyone bothering to inform Google (Google translation from the original Portuguese, and it sounds like the company will try to fight the injunction.

The company points out -- accurately -- that it's merely indexing the content that's out there, and is not responsible for it. However, Xuxa's lawyer mocks them for this claim, saying that Google can and should block such content, and that the court system in Brazil is "tired" of deciding whether or not search engines are responsible for the content to which they link.

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Guy Fined For Posting Links To Official Broadcast Of Hockey Games

Mike Masnick — Thu, 11 Nov 2010 11:31:26 PST

Over in Sweden, it appears that a guy has been fined for linking to an online broadcast of a hockey game. We've heard stories of people getting in trouble merely for linking to unauthorized content, but this story is even more ridiculous. The guy wasn't linking to unauthorized content. He was linking to an online video feed from the official broadcaster, Canal Plus. The issue was that Canal Plus was apparently technically incompetent in how they set up the feeds, and never intended to make the feeds public. But the way they set up the offering, it was easy for anyone to quickly figure out what the full public feed was and this guy then linked to it. In other words, he was fined not for any actual infringement. And he was not fined for linking to infringing content, but for pointing to a publicly available stream that was only public due to Canal Plus' poor engineering choices. And rather than admit that it was its own poor technical skills that were the problem, Canal Plus blamed the guy:

In the summons against the man, Canal Plus called his actions “an assault on the entire operations of pay TV services on the Internet” and that by publishing links to the streams broadcast openly from the Canal Plus website he had illegally made them available to the public.

And the court agreed. That's the really scary part.

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Court Allows German Website To Link To Software Company's Website Five Years Later

Mike Masnick — Tue, 19 Oct 2010 21:37:47 PDT

Having recently been in Germany, and discussing the state of the law there, I have to say that I was pretty stunned with the level of liability placed on third parties in Germany. I was told, repeatedly, that German law places tremendous liability on third parties, holding them responsible for actions of users in many, many cases. So, perhaps it shouldn't have been a surprise that a news publisher, Heise, was banned from linking to a software company, Slysoft, which makes programs for copying various content from CDs, DVDs, etc., and which can be used to circumvent DRM. Way back in 2005, Heise was sued by folks in the music industry (it's unclear exactly who, and most of my searches are turning up only German reports on this -- so if anyone knows, please fill us in via the comments), and a court ruled that it could not even link to Slysoft's front page, even as the company's lawyers pointed out (correctly) that not linking wouldn't exactly stop people from being able to find Slysoft and its software, and that linking is part of how journalism works these days.

Another court in 2008 agreed, but now, five years after the original ruling, it appears that a court has rejected those earlier rulings and upheld Heise's right to link to the website of a company it was reporting on (found via Glyn Moody). It's pretty amazing in this day and age that this even needs to be discussed, but there's still plenty of confusion over this. A link is just a form of speech. It's about time that courts finally understood this simple fact.

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New York Times Insists It Can Stay Part Of The Conversation With 'First Click Free'

Mike Masnick — Wed, 13 Oct 2010 05:35:56 PDT

While I've still been linking to NY Times articles for Techdirt posts, if there are decent stories on the same subject elsewhere, I've been starting to use those other sources instead. That's because I know we're getting closer and closer to 2011 -- when the NY Times has promised to lock up its content behind a paywall. The company still keeps pretending that it can have the best of both worlds, and is apparently insisting that the paywall won't remove it from the wider conversation because it will allow a "first click free" sort of program, whereby you'll be able to read an article once if you click through from another site, before being asked to pay. While that might make the NY Times comfortable, it doesn't make me comfortable at all. If there are no other options, I may still link to NY Times content, but I'm certainly going to be a lot more cautious linking to it. Why would I even risk pissing off my readers by a lockout when I can point them to another site that actually wants that traffic?

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