[Ecommerce] Re: [Politech] Ethan Ackerman on downside in Diebold opinion: hyperlinking threatened [fs]

[Jeff Williams]

Ethan, Declan and all,

  The INDUCE act is an abomination piece of legislation which sen.'s
such as Orin Hatch are seeming wishing to push in order to quell the
yammering of the recording and motion picture companies heavy
lobbying.  Even so, such a law should it enacted, which is likely,
is not broadly or effectively enforceable.

  Eliminating hyperlinking which is only one aspect of the INDUCE
act legislation, would effectively destroy the internet we know it.
That would only serve to damage many all over the world.

Declan McCullagh wrote:

> -------- Original Message --------
> Subject: RE: [Politech]  -  (small) Downside in OPG v. Diebold -
> hyperlinking still threatened
> Date: Fri, 1 Oct 2004 21:47:07 -0400
> From: Ethan Ackerman <eackerma@u.washington.edu>
> Reply-To: <eackerma@u.washington.edu>
> To: Declan McCullagh <declan@well.com>
>
> Greetings Declan,
>
> I thought you might be interested in one of the observations the OPG v.
> Diebold court repeated in its opinion, one that (unfortunately) seems to be
> rather common consensus among federal judges:
> ---Some instances of hyperlinking can give rise to claims of contributory or
> vicarious infringement or inducing of infringement.---
>
> This is not an idea new to judge Fogel's opinion - indeed he rather
> minimizes it, relegating it to footnote 12 - but it seems to be taken as
> unchallenged truth in more and more judicial opinions.
>
> One of the requests that EFF attorneys (I suspect, thoughtfully and
> intentionally) made in this suit was for a declaration that "Hosting
> websites that link to allegedly infringing material is lawful."  (EFF's
> complaint, at
> http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/First_Amended_Complaint
> .pdf)
>
> The judge agreed that the hyperlinking was entirely OK in THIS case, but
> recognized that hyperlinking COULD give rise to liability, and refused to
> make a blanket declaration that hyperlinking is never a vicarious or
> contributory infringement.
>
> EFF knows what it is doing on this issue and just what could be at risk,
> having addressed other threats to hyperlinking in the past.
> ((See www.mail-archive.com/politech@politechbot.com/msg00896.html  for EFF
> comments on a previous case.)
>
> Why is this email more than an academic footnote?  It shows that
> hyperlinkers can face liability under copyright law as CURRENTLY written.
> Broadening the definition of inducement, as legislative proposals such as
> S.2560 (the INDUCE Act) would do, only serves to further threaten acceptable
> types of hyperlinking, not to mention the chilling effect it would have on
> those links currently on the margin.
>
> -Ethan Ackerman
>
> -----Original Message-----
> From: politech-bounces@politechbot.com
> [mailto:politech-bounces@politechbot.com]On Behalf Of Declan McCullagh
> Sent: Friday, October 01, 2004 1:04 AM
> To: politech@politechbot.com
> Subject: [Politech] OPG v. Diebold: You abuse copyright law, you pay $$$
> [ip]
>
> [...]
> Fogel's decision:
> http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/20040930_Diebold_SJ_Ord
> er.pdf
>
> [...]
>
> _______________________________________________
> Politech mailing list
> Archived at http://www.politechbot.com/
> Moderated by Declan McCullagh (http://www.mccullagh.org/)

Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Be precise in the use of words and expect precision from others" -
    Pierre Abelard

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
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