[Upd-discuss] proposed TACD statement on patents and linking

[James Love]

I'm working on a draft statement for the Trans Atlantic Consumer
Dialogue on patents, and would appreciate any suggestions.  More about
TACD is on the web here: http://www.tacd.org.  See in particular
http://www.tacd.org/meeting2/electronic.html  To see what these
statements might look like.

Here also is the proposed TACD statement on web page linking:

       Jamie Love <love@cptech.org>

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Draft .9

Proposed TACD position on Linking


The Internet's World Wide Web is designed so that persons can point to
information, using a Universal Resource Locator, commonly referred to as
a URL.   Pointing to a resource on the Internet is sometimes referred to
as "linking."  It is common for web pages to link to other resources on
the web.   There are legal disputes over linking practices.  For
example:

-       Music publishers claim that it is illegal to link to web pages
that have copies of software that can circumvent DVD anti-copying
technologies.  

-       Music publishers want Internet Service Providers to be libel for
infringement if they host web pages that link to web pages that have
infringing MP3 files.  Similar claims have been made in connection with
hypertext links to photographs and other materials.

-       Ticketmaster, Universal Studies, eBay, the Times of London, the
Washington Post, the Village Voice and others have asserted that "deep"
linking is illegal under various legal theories.  (Deep linking is a
name for linking to an "interior" page on a web site, such as 
http://news.cnet.com/news/0-1005-200-324822.html, which is a "deep link"
to a page on cnet's news.com web site.)

-       The Los Angles Times, Total News, Playboy, Futuredontics,
Hotmail and many others are involved in disputes over the appropriate
use of "framing" web pages -- a practice of presenting a web page within
another web page. 

        The technology of the World Wide Web is new.   Governments
should avoid restrictions on a person's freedom to point to
information.   The benefits of the free flow of information, including
information about where information is located, are great.   We are
particularly concerned with efforts by governments to prohibit such
practices as "deep linking," a practice that is fundamental to the web. 
If web page operators were to forgo deep links, it would be far more
difficult to find information on
the Internet.  

        We oppose efforts to make web publishers liable for infringing
materials that appear on linked pages.  This will chill speech on the
Internet.  It is impossible for most persons to know if a linked web
page contains infringing materials.  Moreover, it will undermine the
rights of persons who have legitimate claims to use materials on the
web, including cases where there are differences of opinion regarding
infringement.  For example, under doctrines of fair or innocent use, the
use of copyrighted
materials is permitted, even without authorization, for some purposes.

However, if a web page is perceived to be using materials in ways that
may be controversial, the publisher will run the risk of others
declining to link to that page, in order to avoid liability for
contributory infringement.   The web page publisher will be thus be
punished even if engaged in legally permitted activities.  

        The Internet is a new technology, and we are only beginning to
understand how it will be used.  There are many technological solutions
to concerns expressed by content owners.  Governments should protect the
freedom of persons to link to web pages.


For more information on linking disputes, see:
http://www.jura.uni-tuebingen.de/~s-bes1/lcp.html