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Canada Communications Media The Courts

Landmark Canadian Hyperlink Case Goes To Supreme Court 118

Posted by Soulskill
from the moose-sense dept.
An anonymous reader writes "Vancouver businessman Wayne Crookes is trying to reverse a decision by BC Supreme Court judge Stephen Kelleher that linking is not the same as publishing. He's been given permission to appeal it to the Supreme Court of Canada. If he wins, it could mean the end of the net in Canada and will reverberate around the world. 'The notion that someone might be considered a publisher merely by linking to someone else's content, I think could have a potentially huge chilling affect [sic] and, for that reason alone, is going to have a major impact on the shape of the Internet in Canada,' says Ottawa law professor Michael Geist. Hyperlinking is what the web is all about, says p2pnet founder Jon Newton. 'Without it, the Internet would become a drab and pale facsimile of the exciting news, data and information medium it is today. Instead, each item would be isolated from every other item, and online defamation lawsuits aimed at anyone and everyone with a Web site would instantly become commonplace.'"
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Landmark Canadian Hyperlink Case Goes To Supreme Court

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  • by goobermaster (1263770) on Sunday April 04, 2010 @09:28AM (#31723546)

    What gets me is not that this is going to the supreme court (where I'm sure it'll be tossed out regardless) but that it when it was dismissed from the BC Court of Appeals, there was a dissenting judge...

    Government _really_ needs to become better educated on technology and how the 'tubes' work. See - the same thing happens up here in Canada too!

  • Here in America... (Score:2, Insightful)

    by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Sunday April 04, 2010 @09:28AM (#31723550)

    Here in the U.S. we routinely send important cases up to the Supreme Court for decision.

  • Really, I think the whole sturm and drang of the doom of the internet is so much a red herring. This would hurt content aggregators, of course. They would ultimately have to pony up for links to interesting sites, rather than the benefit of a no-follow link. But, between google bombing, link farms and all the other useless link content on the internet, I would not mind a sweeping away of sites that really offer no value at all. Far from being this rich and beautiful thing, most of today's internet is just an over-advertised waste of time.

  • by PolygamousRanchKid (1290638) on Sunday April 04, 2010 @09:40AM (#31723630)

    This stupid case was tossed out in the first instance, and will certainly lose in the second...

    Never underestimate the the ignorance of technology of governments and their courts.

  • Wayne will lose (Score:3, Insightful)

    by myrikhan (1136505) on Sunday April 04, 2010 @10:04AM (#31723770)
    So, Wayne wants the courts to agree hyperlinking an article is "publishing" and that anyone who links to defamatory content is guilty of defamation themselves. He's already lost twice in courts.
    Speaking as a Canadian, I think the snowball has a better chance in our supreme courts. My prediction is that 8 or 9 of the supreme court justices will rule against him.
    Believe it or not, I think our supreme court is pretty good. They're smart people and they make sane decisions.
  • by mark-t (151149) <markt@lynx.b c . ca> on Sunday April 04, 2010 @10:09AM (#31723804) Journal
    If this decision were reversed, it would also be illegal to publish bibliographies or references within *IN PRINT* works, since one is publishing a reference to the source material and that would be considered the same as publishing the material itself.

    The BC court had it exactly right.... links are analogous to footnotes, and *NOT* the same thing as publishing the other material.

  • by anarche (1525323) on Sunday April 04, 2010 @12:07PM (#31724654)

    Ironic considering your sig. I giggled, but throw in some advertising and your site may fall into the latter category.

    Not trying to flamebait, but...

  • by goombah99 (560566) on Sunday April 04, 2010 @01:39PM (#31725428)

    Anticipating the comeback to my post above....
    one might try to argue "the linker to hosted material is not the publisher. the publisher is the person hosting the material".

    I'd agree in large measure but one can intentionally muddy this a bit. consider the following thought experiment.

    I divide a movie into a million single pixel movies. Byt themselves none of these single pixel movies is an "image" it's just a time series of color. Now I host these on 1 million different web sites.

    I then create a page linking to all million of these websites and geometrically arranging the pixels into a rectangle.

    when you load this page, you see a movie mad up from links.

    did the important information here reside in any one of the hosted 1 pixel movies or in the knowledge of how to re-assemble them?

    if you again say, in the hosted 1-pixel movies. then I'll instead link to static color pixles and have a javascript that keeps changing which color patch a given pixel points too. now the hosted color patches clearly are not publishing anything copyrighted. it's just a pixel of color, not a time series. it's the javascript that is chinging these in time and posiution to make a movie.

    where does the important info now lie? is it the linking that is publishing or the hosting sites.

    I hope you can perceive the analogy to bit torrent. A torrent file contains a lot of information about where to find the slices of movie. But it's just links to other places hosting data. None of the hosts is hosting a full movie, just slices. The slices would be useless without info about how to they go together and where to find missing ones.

    so is the torrent tracker hosting the movie or the peer/seeds?

    I'd say the line is grey where you move from the tracker links being the critical info to the peers data files.

    publishing can be linking.

  • by goombah99 (560566) on Sunday April 04, 2010 @01:56PM (#31725566)

    I already anticipated your response in a post further down the page [slashdot.org]. Se there for more discussion. But to offer a quick example to show why the line between "linking" and "hosting" is not so clear consider the following.

    someone takes a copyright image and XORs it with random data taken from some publicly avalaible list of random numbers. If they host this image it's not violating any copyright. it's just a random piece of crap.

    now some third party links to both this image and to the random number key. IS that publishing? not yet you say? okay, suppose they include some javascript or some future HTML 9.0 tag that xors the images together to recreate the copyright image. Surely that is publishing?

    But it's just links. THe data all was hosted elsewhere and not hosted in a form that constituted any infringement. The infringing information was the knowledge of how to combine the two images and that was all in the links.

    see my other post for more discussion.

  • by wrecked (681366) on Sunday April 04, 2010 @10:35PM (#31729400)
    Neither should you underestimate the technological sophistication of the Supreme Court of Canada ("SCC"). This is the same court that recently, in R. v. Morelli [canlii.org], overturned a warrant for child pornography [slashdot.org] on the basis that the contents of an internet browser cache does not constitute possession.

    This court also, 4 months ago, decided in Grant v. Torstar Corp. [canlii.org] to create a new defence against defamation of "responsible communication on matters of public interest". This new defence allows citizens (including bloggers as well as traditional journalists) to publish critical statements that may not necessarily be true, but are made in good faith towards the public interest. If this defence existed in the UK, then the British Chiropractic Association would not have been able to sue Dr. Simon Singh [google.ca] for scientifically doubting chiropractic claims of success.

    A few years ago, the SCC issued a decision in CCH v. Upper Law Society of Canada [canlii.org], that clarified the "fair dealing" defence in Canadian copyright law. That case dismissed an allegation that merely placing a photocopier in a library was an inducement to copyright infringement.

    Finally, the SCC itself has incorporated technology into its proceedings. The work flow is paperless; documents must be filed digitally [scc-csc.gc.ca]. The court is outfitted with terminals at every station, and the documents are viewed on screens. Selected hearings are broadcast over the internet [scc-csc.gc.ca].

    Yes, IAAL, and a GNU/Linux user to boot. It bugs me when people automatically assume that lawyers are technologically inept.

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