Ruling on Web-link legality troubles some on panel

Thursday, June 14, 2001

NEW YORK — Online journalists could end up censoring themselves to avoid legal troubles under a new standard that allows a judge to determine the legality of hypertext links based on the linker’s intent, two leading cybercolumnists warn.

“The courts are (now) supposed to get into the minds of editors, to figure out what their intent is,” said Carl Kaplan, New York Times online law columnist, last night at the First Amendment Center.

“That’s not such a great thing,” Kaplan added, “because that could end up chilling editors and reporters to keep pretty far away of the law.”

Kaplan and Jonathan D. Hart, who writes about legal issues for, voiced their concerns as part of a panel convened by the center and the Online News Association to discuss the fallout from a court decision last year that tested the limits of free expression in the digital age.

The ruling by a U.S. District Court judge in Manhattan, which stemmed from a movie-industry battle to protect copyrighted DVDs, is being appealed. But, Kaplan said, it established a three-part test for judges to use in determining whether a Web link is legal.

By the test, Kaplan noted, any Web link could be considered illegal if the court has “clear and convincing evidence” that the person providing the link:

  • Knows the link would take readers to a site providing illegal software.

  • Knows the software is illegal.

  • Creates or maintains the link with the purpose of disseminating the illegal technology.

Although the criteria of “clear and convincing evidence” is “a pretty high standard” within the court system, Kaplan added, the test nonetheless frightens journalists.

“There are people who thought that (the) test is too broad,” he said. “In fact, any time the press links to something, it’s for the purpose of disseminating that information.

“The test, rather than giving the press comfort, is quite scary.”

But panelist Charles Sims, a lawyer who specializes in libel, copyright and First Amendment litigation and was directly involved in last year’s case, said journalists needn’t be so worried.

The case from which the ruling arose “was not a case about academic speech, about teaching,” Sims said. “It’s a case about hacking, pure and simple.” Journalistic links remain protected, he said.

“There is a difference between speech which provides information to the public about any issue,” Sims said, “and providing unlawful materials.”

The case involved the publisher of a magazine and a Web site on computer hacking offering software on his site,, that allowed users to copy DVD movies directly onto their hard drives — an action that could allow them to pirate the movies with ease.

When the eight major movie studios sought to stop the publisher, Eric Corley, from offering the software, he then asked other Web sites to post the program and provided links to those sites on, said Sims, who represented the movie studios in court.

After finding that Corley’s software infringed on the studios’ copyrighted movies, U.S. District Judge Lewis Kaplan also ruled that the links were illegal, because they were created with the intent of providing illegal software, Sims said.

But Sims said yesterday that Corley’s linking was quite different in nature from newspapers’ linking.

As a parallel, he suggested, “There is a difference between talking about gun control, or where generally you can get guns, and giving people guns. There is a difference between an article in any newspaper that says, ‘If you want to read more about this issue, look at 2600,’ regardless of what’s on 2600′s page,” and linking to the page with the specific intent of providing access to illegal software.

The newspaper’s action “is reporting,” he said. “It’s protected by the First Amendment. And no one claims otherwise.”

Sims said that Kaplan’s ruling “was not a broad-based attack on linking, much less a broad-based statement that linking is illegal. It was an effort to get relief against somebody who had been violating their (the studios’) rights and who continued to do so even after the judge enjoined him from doing so.”

Hart, however, was not convinced that the judge’s ruling was so harmless, because he said the three-part test could apply equally to journalists or hackers.

“I do see a First Amendment problem,” Hart said. “We had a judge who was mad as hell at somebody who was flouting his authority, and [he] did something he didn’t have to do” in establishing the broader test.

Judges, legislators and others are trying “to create the law that will govern the Internet,” a medium that “is in its infancy,” Hart added. “I think what’s troubling here is that we have a court that jumped the gun.

“We need to take small steps and take it slowly.”

Kaplan said that although Judge Kaplan’s ruling was aimed at shutting down Corley’s Web site activities, at least one member of a 2nd U.S. Circuit Court of Appeals panel that was considering the case last month did see ramifications beyond the realm of DVD technology.

According to Kaplan, Circuit Court Judge Jon Newman asked what might happen if a newspaper were to publish the address of a store selling child pornography, and whether the journalists involved could be prosecuted if a judge decided their intention was for readers to use the information to buy child pornography.

“This is not a simple case. This is a rich, interesting case,” Kaplan said. “It creates problems for the press. These are questions that are being sorted out. They are not easy questions to answer.”

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