The right to hyperlink - in response to the Canadian decision(balkin.blogspot.com)
balkin.blogspot.com
The right to hyperlink - in response to the Canadian decision
http://balkin.blogspot.com/2011/10/freedom-of-speech-and-right-to-link.html
4 comments
I'm curious as to why extreme examples are "weak" in the context of evaluating a framework to evaluate hyperlinks. Whatever policy the courts put in place, they have to handle both extreme and non-extreme situations.
Following your line of reasoning, we'd accept that building a website with the sole intention of linking to kiddie porn would be OK - because the author of those links has no control over what's on the other side.
As with most discussions like these, the trick is in how to draw the line, how to strike the balance.
Following your line of reasoning, we'd accept that building a website with the sole intention of linking to kiddie porn would be OK - because the author of those links has no control over what's on the other side.
As with most discussions like these, the trick is in how to draw the line, how to strike the balance.
If we had this discussion about pirated movies and music, then you and I can have a reasonable discussion about the merits of one side or the other. And if you are strongly against copyright infringement, or feel that the music and movie companies have too much power in the law, there are reasonable merits to either side of the debate and a real discussion can take place.
The moment you bring child porn into it, then anyone who would "accept that building a website of the sole intention of linking to kiddie porn would be OK" is then labelled a sick, twisted individual for supporting such a thing. It's an argument designed to shut debate down before it even starts.
It's like Godwin's Law. Eventually someone mentions Hitler and that pretty much ends the discussion.
The moment you bring child porn into it, then anyone who would "accept that building a website of the sole intention of linking to kiddie porn would be OK" is then labelled a sick, twisted individual for supporting such a thing. It's an argument designed to shut debate down before it even starts.
It's like Godwin's Law. Eventually someone mentions Hitler and that pretty much ends the discussion.
I feel like his solution is to let others decide what is or is not a "legitimate use" of a hyperlink. The Supreme Court decision is correct in that it protects all "free speech" on the internet. The takeaway here is that we, as a people with rights to free speech, have those rights protected in new media. It's not about how the underbelly of society can abuse those rights.
Tor also serves a particular goal that exposes itself to abuse, but should the project start discriminating on what content to allow based on that fact?
Tor also serves a particular goal that exposes itself to abuse, but should the project start discriminating on what content to allow based on that fact?
I see no need to restrict linking. Let's take a closer look at the child porn example here. This person has links. How did they get them? If they verified the links then right there you have direct illegal behavior. Even if they didn't visit themselves, if they know who is hosting child pornography then they are expected to report it. On the other hand, if they are some kind of impartial link aggregator being fed by third parties then I don't see a problem. Go after actual promoters.
In the example you cite, I agree - if someone just aggregate links generally, and had no intention of pushing people towards verified child porn, there was no intention there. Those link shouldn't be penalized.
On the other hand, if someone did verify the illegal content, and posts links with the clear, sole intention of driving others towards the illegal activity - then what?
I don't think you can decouple the link entirely from intention - links are sometimes expressive, as this article points out.
Instead of just giving ultimate, endless rights to link to anything for any reason, we say: base case, free speech, link to anything. But if someone can prove your intentions were illegal (no easy task), you're not necessarily protected.
Intention is a tricky gray area, but this would be in sync with other free speech protections - e.g. someone can press charges for libel on things you publish, but the burden of proof is on them to show the statement was false, harmful, and was made with malicious intent.
On the other hand, if someone did verify the illegal content, and posts links with the clear, sole intention of driving others towards the illegal activity - then what?
I don't think you can decouple the link entirely from intention - links are sometimes expressive, as this article points out.
Instead of just giving ultimate, endless rights to link to anything for any reason, we say: base case, free speech, link to anything. But if someone can prove your intentions were illegal (no easy task), you're not necessarily protected.
Intention is a tricky gray area, but this would be in sync with other free speech protections - e.g. someone can press charges for libel on things you publish, but the burden of proof is on them to show the statement was false, harmful, and was made with malicious intent.
If they verified the links then go after them for the much nastier charge of downloading child porn.
While it's possible to make a directory that encourages illegal behavior, it's also possible to make a directory that sits idly by as a repository of factual information. Yes, the court should check for direct encouragement of illegal behavior. But I'm not comfortable letting the motivation in creating the site matter very much because it is so difficult to prove one way or the other.
While it's possible to make a directory that encourages illegal behavior, it's also possible to make a directory that sits idly by as a repository of factual information. Yes, the court should check for direct encouragement of illegal behavior. But I'm not comfortable letting the motivation in creating the site matter very much because it is so difficult to prove one way or the other.
> Extending such a constitutional privilege does not mean permitting linking when it clearly intends to facilitate illegal behavior.
In what way would this not just be a return to the status quo? Cue thousands of copyright lawyers getting right back in line to issue random lawsuits.
No, a blanket statement "linking is not illegal" is both constitutional, and will drastically reduce this drain on the efficiency of the courts.
In what way would this not just be a return to the status quo? Cue thousands of copyright lawyers getting right back in line to issue random lawsuits.
No, a blanket statement "linking is not illegal" is both constitutional, and will drastically reduce this drain on the efficiency of the courts.
This is actually making a very strong argument to protect hyperlinks and the right to use them - but to do so under the lens that hyperlinks are free speech.
Much like newspapers have the right to say whatever they want. Of course, there are limitations. People can sue the NY Times, but it's not easy - the burden of proof is on the people bringing the suit. The 'strict scrutiny' standard, as I understand it, would make it very difficult for someone to attack hyperlinking. It does, however, enable that discussion in the case of extreme situations.
Much like newspapers have the right to say whatever they want. Of course, there are limitations. People can sue the NY Times, but it's not easy - the burden of proof is on the people bringing the suit. The 'strict scrutiny' standard, as I understand it, would make it very difficult for someone to attack hyperlinking. It does, however, enable that discussion in the case of extreme situations.
The whole crux of the Supreme Court of Canada's decision is that, when linking to something, you have no control over the content of the destination. So today it can be a nice picture of a kitten, and tomorrow someone can change it to something defamatory and illegal.
Or today its a link to a public domain song, and tomorrow someone replaces it with something copyrighted with the same URL. You can't control that.