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The Courts Your Rights Online

Legal Motion: Hyperlinks Are Protected By the First Amendment 49

Posted by Soulskill
from the pointing-to-a-thing-is-not-transferring-a-thing dept.
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."
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Legal Motion: Hyperlinks Are Protected By the First Amendment

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  • It's only a motion (Score:5, Insightful)

    by edibobb (113989) on Wednesday March 05, 2014 @03:28AM (#46405813) Homepage
    A motion filed by lawyers is not a judgement and is nowhere near legal precedent, as the typically sensational /. headline implies. Lawyers regularly file motions claiming the sun rises in the West and sets in the East.
    • Lawyers, it is great to have them, but very expensive to have them pointed against you.
      • What do you call a lawyer with an IQ of 100? Your Honor. What do you call a lawyer with an IQ of 50? Congressman.
        • Er war ein guter Jurist und auch sonst von mäßigem Verstand
          -- Ludwig Thoma

          (He was a good attorney and generally of low intellect)

          It loses a bit in the translation, in German it does actually imply that they entail each other.

      • by Russ1642 (1087959)

        Great to have them? What kind of backwards parallel universe did you just come from?

    • The motion makes an argument. I disagree that the headline implies a judgment or precedent, as it clearly says "Legal motion:". EFF is talking about the precedent that COULD be set if convicted or this survives dismissal.
  • 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."

    Non sequitur. The means by which he shared the link is immaterial. If they meant, "as he arguably would have done had he hosted the linked files on his server", then that's what they should have said.

    • Re:Uh, what? (Score:5, Informative)

      by ageisp0lis (2679663) on Wednesday March 05, 2014 @03:44AM (#46405881) Homepage
      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: (Score:2, Informative)

      by ageisp0lis (2679663)
      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.
  • As much as I hate the riaa for starting this shenanigan 15 years ago a hyperlink is not the same as pointing to someone.

    Reason being is a hyperlink is a verb or action while pointing is an expression. You click it and something happens no different than clicking a .exe. Now what about someone linking to a published flaw? In this case the action is fine as the other user does the action and its legal to hack your own computer. It also is legal to link to a site which talks about it.

    But linking an executable

    • Reason being is a hyperlink is a verb or action while pointing is an expression.

      Gibberish,

    • Semantic nonsense.

      A hyperlink is a reference. It can be used to show someone something. Essentially it is pointing at something, and if the hyperlink contains some kind of information about the target, it is like pointing and telling the person what he is about to see there.

      Allow me to illustrate.

      http://yro.slashdot.org/story/14/03/05/0230207/legal-motion-hyperlinks-are-protected-by-the-first-amendment [slashdot.org]: That would be pointing and not saying anything. Like pointing at a dope dealer's house without giving you

    • by TheCarp (96830)

      > Reason being is a hyperlink is a verb or action while pointing is an expression. You click it and
      > something happens no different than clicking a .exe.

      No. A hyperlink is a pointer to something else. A hyperlink contains no instruction as to what to do with what is on the other end of that link, the action is entirely locally defined by the web browser. A hyperlink is functionally no different from a bibliographic entry in a book...it is a named pointer; which you may or may not look up if you so cho

  • by EzInKy (115248) on Wednesday March 05, 2014 @04:07AM (#46405949)

    If I post a link to a website that which at that moment doesn't host "forbidden" content but later does, am I liable for providing access to said "forbidden" content? Logic would dictate that a person can only be held accountable for their own actions, not the actions of another.

    • Yeah, that is one of the huge problems with criminalizing any links at all. The content can change at any time. Transmitting a link shouldn't be equivalent to possessing or disseminating the data contents that reside at the URL.
    • The problem is trying to prove that the content was changed later without you having a chance to react. In many countries the law assumes that you constantly monitor the things you link to for changes that are not in accordance with the law. Not only a technical nightmare but also one where you'd probably have to be a lawyer to react in real time. Another proof that laws are made by lawyers for lawyers.

      It can be quite hard to prove that your intent was not to link to "forbidden" content, especially when it

    • Under the law you are liable to whatever they want you to be liable for, and this can be applied and enforced after the fact.

    • Even if we assume that Brown's lawyers don't prevail in their arguments, the scenario you're discussing wouldn't be illegal under the statute, which requires that you "knowingly" link to the content. So, if you linked to www.slashdot.org/storyxyz, and, at some point, somebody replaced storyxyz with (say) a long list of stolen credit card numbers, you wouldn't be liable, so long as, if you discovered the content had changed, you removed the link.

  • by caveat (26803)

    sir pball here!

  • It is good to see continuing attempts to assert our freedoms based on the ever more creative and expanded interpretations of the First Amendment. If the book prohibits cooking a lamb in its mother's milk, then pepperoni pizza is not kosher either — alright...

    But why is not the Second treated just as creatively? If the same narrow reading, that is being constantly applied to the Second, was applied to the First Amendment, your right to free speech would've been limited solely to petitioning the govern

  • Good luck with that. A lot of things that used to be protected by the First Amendment are no longer protected by it.

  • It's my understanding it's only illegal to stand there and say, "There's a drug house right over there", complete with pricing information, if I am a part of their operation, or trying to promote it.

  • ... and journalists don't seem to recall much history.

    Back in the days of the DeCSS controversy, 2600 magazine was one who proudly hosted the code on their site... only to get slapped down by the DVD CCA who accused them of distributing the code in question.

    Eventually 2600 relented and stopped hosting the code... but instead had links to places it could be obtained.

    The DVD CCA was not impressed... and won again, arguing that such linking was also a form of wilful distribution of the code.

    • by TheSHAD0W (258774)

      I remember this. The court ruled that a hyperlink was an automated system for directing people to the content.

      2600 then took the links down, but published the bare URLs to the content, not as a link. I don't recall whether they went back to court over that.

  • This shouldn't be on slashdot . . . yet. The article merely talks about what his own attorneys are planning on arguing in court. I think he has a solid case, but let me know when a court hands down a real opinion.
  • "Hyperlinks Are Protected By the First Amendment" If that's the case, then everything on thepiratebay.org is perfectly legal. Torrents and magnetlinks are esentially hyperlinks for the BitTorrent protocal.

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