October 24, 2003

Diebold memos and linking prohibitions at Swarthmore

Ed Felten writes:

Ernest Miller reports that Swarthmore now is yanking the Net connections of students who linking to a page that links to a page containing the infamous Diebold memos.

In discussing these issues, it's instructive to review the discussion of the prohibitions against linking in the Reimerdes (DeCSS) case (my emphasis below). Key part:


This isn't a court case yet, but the same sort of thinking applies.

"The other concern--that a liability based on a link to another site simply because the other site happened to contain DeCSS or some other circumvention technology in the midst of other perfectly appropriate content could be overkill--also is readily dealt with. The offense under the DMCA is offering, providing or otherwise trafficking in circumvention technology. An essential ingredient, as explained above, is a desire to bring about the dissemination. Hence, a strong requirement of that forbidden purpose is an essential prerequisite to any liability for linking."

"Accordingly, there may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology. [FN257] Such a standard will limit the fear of liability on the part of web site operators just as the New York Times standard gives the press great comfort in publishing all sorts of material that would have been actionable at common law, even in the face of flat denials by the subjects of their stories. And it will not subject web site operators to liability for linking to a site containing proscribed technology where the link exists for purposes other than dissemination of that technology."

"FN257. In evaluating purpose, courts will look at all relevant circumstances. Sites that advertise their links as means of getting DeCSS presumably will be found to have created the links for the purpose of disseminating the program. Similarly, a site that deep links to a page containing only DeCSS located on a site that contains a broad range of other content, all other things being equal, would more likely be found to have linked for the purpose of disseminating DeCSS than if it merely links to the home page of the linked-to site."

By Seth Finkelstein | posted in copyblight | on October 24, 2003 12:37 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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I was wondering, so I thought others might:
The New York Times Standard - (New York Times Co. v. Sullivan, 376 U.S. 254 (1964))bars media liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth.

Posted by: Adam at October 24, 2003 08:29 PM