To link or not to link

Thursday, June 22, 2000

When hackers discovered a way to reconfigure DVD players to allow Linux users to play the movies on their computers, Eric Corley provided easy access to the code.

He posted it at 2600: The Hacker Quarterly, an online magazine he operates under the name Emmanuel Goldstein. But the movie industry was successful in its bid to have a federal judge in Manhattan last January stop 2600 and several other Web sites from distributing the code online. Corley responded by posting links to hundreds of sites carrying pieces of the code.

And now Corley is before the court again. In April, eight movie studios asked U.S. District Judge Lewis Kaplan in New York to bar Corley from posting such links. Kaplan is expected to rule on an injunction soon. A trial is scheduled for July 17.

The code-breaking software itself, called DeCSS, has generated quite a stir in the movie industry because it allows users of Linux and other non-Windows operating systems to play the movies on their computers.

Officials in the movie and recording industries say such software directly violates several provisions of the Digital Millennium Copyright Act. Passed in 1998, that act makes it illegal for anyone to provide to the public a device designed to circumvent safety measures limiting access to copyrighted work. The act also forbids anyone to direct traffic to circumvention technologies.

But First Amendment advocates say a successful effort to remove the links would constitute a “gross prior restraint of speech.”

“As part of its role as an organ of the media, 2600 took the same actions as other media outlets such as the San Jose Mercury News,, Wired and ZDNet, which all at one time also linked directly to DeCSS,” wrote Martin Garbus, a noted First Amendment attorney who is representing Corley.

Lawyers for the movie studios say they don’t have a problem with the linking — they have a problem with the people who provide the link with the sole purpose of illegally playing the movies.

The courts have dealt with posting and linking before. A federal judge in Utah last year barred a couple from posting chapters of the Church of Jesus Christ of Latter-day Saints’ “Church Handbook of Instructions” on their Web site. The judge also ordered them to remove links to the copyrighted text.

In another lawsuit, the recording industry asked a federal court judge to shut down Napster, a popular online song-sharing service, for assisting users in copying copyrighted musical works for free.

But existing legal principles can or have resolved those issues, says Mark Sableman, a St. Louis-based attorney who specializes in Internet law. He says the DVD case thrusts the concept of the Internet — more specifically, the very nature of linking — into a whole new realm.

“I think it all comes down to two things: the view of the Internet and the view of the link,” Sableman said. “Is the Internet truly an open network that needs a kind of legal fence to be erected where there currently are no fences? Is a link pure speech, a reference footnote that happens to be active, or is it speech plus action?”

Sableman says the courts have determined that action can be separated from speech and thus be regulated. He recalls a case where a hunter under charges of poaching unsuccessfully cited the First Amendment as protection after he yelled at his dog to attack a game marshal.

But Sableman questioned whether a court could separate the activation of the link from the speech.

He said that if Corley’s case went forward, online critics who post links to sites supporting their arguments could face punishment. Operators of sites as seemingly innocuous as search engines could also be penalized, he said.

“Is it any different from what happens if you do a search for the encryption utility on Yahoo! or AltaVista or Google?” Sableman asked. “They all give you electronic lists (of links) to those sites.”

Studio lawyers respond in court documents, saying “there is nothing illegal about linking as such.” But they say Corley’s actions, as opposed to those of news organizations and search engines, are meant to actively encourage other users to download DeCSS to break DVD encryption codes. They also say that Corley’s links demonstrate a concerted effort to direct traffic to DeCSS software.

The Electronic Frontier Foundation disagrees, saying the ban on links and on the posting of the software infringes on the public’s right to free discourse. The DeCSS allows a legitimate use of purchased copyrighted works, says EFF attorney Robin Gross.

“EFF opposes technical restrictions that limit consumers’ legal rights,” Gross said. “The anti-circumvention provisions that protect these restrictions are unconstitutional, because they violate the public’s right to publish and receive software.”

Dan Burk, a professor at the University of Minnesota’s law school, said Kaplan would likely ban the links until trial. He said that because Corley had already faced legal action concerning the posting of the code, the court is essentially empowered to impose pre-trial restrictions on the links.

But Burk said Kaplan first failed to address the First Amendment issues in January. He noted that the 6th U.S. Circuit Court of Appeals determined in Junger v. Daley last April that encryption is a form of speech. Although that decision isn’t binding in New York, Burk faulted Kaplan for not even attempting to reconcile the DeCSS source code as a form of speech that should be protected.

As for the posting of links, Burk said that would be much more difficult to ban “because the First Amendment would be in full play because of the ability to tell someone where to go for information.

Phillip Taylor, a reporter for the Daily Press in Newport News, Va., is a free-lance correspondent for the First Amendment Center.