Legal Motion: Hyperlinks Are Protected By the First Amendment

Barrett Brown, a journalist and the former unofficial spokesperson for Anonymous, was arrested in 2012 and charged with sharing a hyperlink that pointed to information downloaded during the Stratfor hack. His trials begin in April and May. An anonymous reader notes that his attorneys have filed a legal brief (PDF) asking for dismissal of the case, saying that Brown's First Amendment right to free speech protects his sharing of a hyperlink. They argue that "Brown did not 'transfer' the stolen information as he arguably would have done had he embedded the link on his web page, but merely created a path to files that had already been published elsewhere that were in the public domain." The brief also says the statute under which Brown is being charged does not make it clear that a link constitutes "republication" of information. They add, "This construction also significantly chills scientific research conducted by private cybersecurity researchers for the same reasons."

Re:Uh, what?

[ageisp0lis]

This is what it says, the editor just mangled it a bit. It's missing context. The government is relying on copyright case law, which traditionally distinguishes "in-line" linking from "embedded" linking. This is neither: it's a traditional link, and so their reliance on that is flawed. - - - First, republishing the hyperlink did not make the Stratfor file available to others. As explained above, the “hyperlink” was a text string that conveyed a location where the Stratfor file could be found, and nothing more. The conveyance of information regarding the location of data is not a crime under 1028 because unlike “in-line” or embedded links, the hyperlink that Mr. Brown republished did not contain any Stratfor file data. Second, the sharing of location information is not sufficient for criminal liability under Section 1028 because to hold otherwise would stretch interpretation of the statute far beyond the reach that Congress intended. Indeed, the conduct complained of in LiveNation is known as “inline linking”—where an infringing website acts as a portal or frame for infringed content sourced at another website. In LiveNation, the “inline linking” on the infringer’s site allowed the web-surfer to “display” (or listen to) protected material without having to leave the infringer’s webpage. In copyright cases, courts have distinguished “in-line” linking for purposes of liability. As illustrated above, an “in-line link” refers to the process whereby a webpage can incorporate by reference (and arguably cause to be “displayed”) content stored on another website. By contrast, “traditional” linking (as is alleged in this case) transports the user to the linked-to page without incorporating third-party content via “in-line” linking or framing. This has been held to not constitute direct infringement, in the copyright context, even if the linked-to page is infringing. By contrast, Mr. Brown’s alleged republication of a hyperlink in a chat room cannot be described as “in-line” or “embedded” linking.

Re:Uh, what?

[ageisp0lis]

Heh, on second examination that sentence isn't in the original motion. It's from The Guardian writer who seems not to have fully understood what they were talking about.