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Linking Is Not Copyright Infringement, Boing Boing and EFF Tell Court (torrentfreak.com) 90

An anonymous reader shares a report: The popular blog Boing Boing has asked a federal court in California to drop the copyright infringement lawsuit filed against it by Playboy. With help from the EFF, Boing Boing argues that its article linking to an archive of hundreds of centerfold playmates is clearly fair use. Or else it will be "the end of the web as we know it," the blog warns. Late last year Playboy sued the popular blog Boing Boing for publishing an article that linked to an archive of every playmate centerfold till then. "Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time," Boing Boing's Xena Jardin commented. Playboy, instead, was amazed that infringing copies of their work were being shared in public. While Boing Boing didn't upload or store the images in question, the publisher took the case to court.
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Linking Is Not Copyright Infringement, Boing Boing and EFF Tell Court

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  • by Anonymous Coward on Friday January 19, 2018 @04:17PM (#55963413)

    Tell that to RMS / FSF, they think linking (with GPL software) creates a derivative work.

    (Yes, I know that's a different kind of linking)

    • by Anonymous Coward

      The Library Linking clauses in the GPL/LGPL are there because the programs rely on the libraries in order to provide some of their functionality.

      In the case of the boingboing article, the 'program' is accessing the archive of centerfolds (the library) to provide a key piece of functionality, in this case the definition of how our perception of beauty has changed over time as it related to the female body in adult magazines.

      As such, based on the GPL definition of linking, if that definition was based on the

      • A better web page analogy for the GPL version of linking might be an iframe. If Boing Boing's article had embedded the centerfolds gallery in the middle of the article to be browsed in-page while reading the article, then I think Playboy's copyright complaint would be legitimate.

    • by Anonymous Coward

      Tell that to RMS / FSF, they think linking (with GPL software) creates a derivative work.

      (Yes, I know that's a different kind of linking)

      That is arguable. If the part of the code that is licensed under GPL isn't modified by the linker in any way then the actual linking is just a couple of addresses referencing something else. Those references aren't valid URLs but that is about the only real difference.

      The actual difference comes when you redistribute it.
      You typically don't download a page you are linking to and send it to the end user. You send the link to the user so that they (their browser) can do that downloading themselves.
      This is wher

  • by RhettLivingston ( 544140 ) on Friday January 19, 2018 @04:17PM (#55963417) Journal
    The whole linking debate would be over if Google would just stop showing any links in searches to content from any organization complaining about linking.
    • by Jody Bruchon ( 3404363 ) on Friday January 19, 2018 @04:40PM (#55963553)
      They have done this before [dw.com] and it was quite successful...and quite humiliating for the people that tried to put Google into a bent-over position. It's a classic case of someone's hubris blinding them to reality; they need Google a LOT more than Google needs them.
      • It's a classic case of someone's hubris blinding them to reality; they need Google a LOT more than Google needs them.

        I somehow doubt that Playboy, Inc, needs Google (or boing boing) providing links to illegal copies of their work being posted on Imagur. I think I it is quite reasonable for Playboy to go after those who have done, or assisted in doing, that, and Playboy would not be harmed in any way by Google (or boing boing) taking down all links to that content.

        I assume the legal argument is that boing boing NEW that the material it was pointing their readers to was an illegal copy, and thus boing boing was aiding th

        • It is not illegal to tell someone how to do something illegal or who they can contact to do something illegal. It is illegal to incite them to perform an illegal act. Example: telling someone how to shoplift is legal while attempting to make someone shoplift is not. (I personally don't think that either should be illegal.) Linking merely tells someone where something is and vaguely alludes to its content; it's no different than a footnote in a paper or a card in a card catalog. A link does not incite someon
          • It is not illegal to tell someone how to do something illegal or who they can contact to do something illegal.

            You spent quite a bit of time roasting me for something I did not say. I said I understood what the argument is, not that it is correct or appropriate.

            But a good rant is always cathartic, huh?

            • No, I understood what you said quite clearly. Perhaps you did not express your thoughts correctly. It doesn't really matter.
  • What is a number? (Score:5, Insightful)

    by El Cubano ( 631386 ) on Friday January 19, 2018 @04:25PM (#55963467)

    The summary got me thinking about "what is a number?" I have heard that argument that you should not be able to patent software because that would be equivalent to patenting a mathematical formula. An image, or song, or any other digital representation of anything, though, is just a number. Can I copyright a number? What about the number 7? The number 5,725,783,997,523? What about 2^4357393-1?

    If I can't copyright any of those numbers, then why/how can an author copyright an electronic composition, or how can a musician copyright a digital recording of his or her work, or how can a photographer or artist copyright a digital image? Can a movie studio copyright their CSS decryption key so that they can issue takedown requests under the DMCA? Can I only copyright a number if it is sufficiently large and unique? Can the most recently discovered Mersenne prime be copyrighted?

    I am not trying to be obtuse. I am genuinely interested in how people think about this rather complex and interesting issue.

    • You bring up an interesting point, one that goes at the heart of the breakdown of the whole concept of copyright, ownership, and control of intellectual property. How much added "noise" does it take before an image (or audio, video, or even text) file is no longer considered the protected property?
    • Re: (Score:3, Insightful)

      It is not the numbers themselves, but the arrangement of those numbers that is copyrighted. The same logic applies to a book (or even your essay on how you discovered that un-copyrightable Mersenne prime). The components of the book (words, letters, symbols) are not copyrightable but the specific arrangement of thousands of those words into a book certainly are. Words, symbols, numbers, a graph of a mathematical function are all trivial and cannot be copyrighted, but putting all of those together in a parti
      • It is not the numbers themselves, but the arrangement of those numbers that is copyrighted.

        Any text, any image, any sound, any video, any algorithm, can be represented as a single (very big) number.

        Also, any "arrangement of numbers" can be represented as a single number (assuming that the original numbers belong to a denumerable set).

      • However, every file on your hard drive can be converted to a number. Just a very big one. Therefore, every song, every movie, and every creative work is just a number a single number on a hard drive.

    • by Anonymous Coward

      Any permutation of binary is a number. In theory simply by counting +1 to infinity there exists every file that has or will ever exist.

      Every movie, every song, every book, every image.

      A copyrighted work can be represented in many formats so in theory they'd have to copyright multiple numbers.

      Something, something, monkeys, Shakespeare.

    • by H3lldr0p ( 40304 )

      If you're being honest, then I'll counter with the following:

      It's not the number that's being copyrighted. It's the method of generating the number which is trying to be protected. That is we're looking not at the result, but the implementation.

      If you can prove that you came up with a different means than the musician or artist used which results in the same output as they did, then by all means you should be awarded an equal copyright for the product. One caveat is that you cannot, through any means, use t

      • It's not the number that's being copyrighted. It's the method of generating the number which is trying to be protected. That is we're looking not at the result, but the implementation.

        So I rip a CD and run it through my algorithm I have now generated a comparable number but according to copyright law I have violated copyright.

    • Well then if civil copyright is out, why then should you be able to imprison someone for decades because their 1s and 0s were in a bad order? That's the logical conclusion of that argument, if just a number can't be copyrighted, how could it be criminalized right? So out with the laws against possession of CP. Just a number-- if it CAN be criminalized, why then not copyrighted, because of what it represents.
    • Your question is like asking if you can copyright the paper in a book.

    • While there's a lot more nuance to it, broadly speaking, copyrights protect expressions of things, rather than the things being expressed.

      For instance, suppose you took a picture of your kids playing outside. Your picture is protected as an artistic expression by copyright. Whether it's on film, in RAW data on the camera, or in a JPEG you posted on your website, it's still your picture that's copyrighted to you. And while we can represent your picture as a number, that number isn't actually your picture. Af

  • Linking is the primary reason the web exists. That was the point when Tim Berners-Lee invented the web. If you don't want someone to link to your material you should restrict yourself to printing on your own paper.
  • by Anonymous Coward
    It appears that all of the good stuff pointed to by the article (assuming this leap day article is the right one) [boingboing.net] has been taken down. :-(
  • by Jody Bruchon ( 3404363 ) on Friday January 19, 2018 @04:34PM (#55963529)
    To use an analogy (those always work well, ha) there's a huge difference between saying "this is how pipe bombs are constructed" and "we encourage you to use pipe bombs on people" but linking isn't even that; linking is "here is where you can find a page that tells you how pipe bombs are constructed." To put it another way, it's the difference between giving someone a drug dealer's number and actually dealing drugs. It is insane to consider linking "copyright infringement" especially since the place linked to is completely out of control of the linking party. This song and dance has been played out before. [gizmodo.com]
    • by Anonymous Coward

      It's nothing new. A link is like a footnote in a book which says, "see page 45 of such-and-such book".

    • by c ( 8461 )

      To use an analogy...

      Given the context, a more apt analogy might be "masturbating to a picture of a woman" is not the same as "having sex with that woman".

      • Well, if you are a female masturbating to a picture of a woman, I could be considered having sex with a woman... just not the one in the picture. Unless you have a thing for selfies...

        • by c ( 8461 )

          ... and there's the reason I specifically wrote "that woman" rather than "a woman".

    • by k6mfw ( 1182893 )
      I think the bomb link is a bad example. From the article on how a law can bomb a business:

      For example Spain introduced a disastrous “Google Tax” law, which forced news aggregators such as Google News to pay royalties if they used content from Spanish publishers. This led Google to simply stop using Spanish media, meaning publishers were hit by decreased readership and advertising revenue. News media in Germany also pressed for a change of law to prevent this, which similarly backfired.

    • by Kjella ( 173770 )

      To put it another way, it's the difference between giving someone a drug dealer's number and actually dealing drugs.

      You seem to assume the former is innocent and the case law is settled, that's far from the truth. If I send some drugs in a package from Mexico to the US in the mail, what's the difference between the mailman and a drug mule? One is considered an "innocent" intermediary like the phone company, your VCR, your ISP, YouTube and so on. The other is considered a "guilty" intermediary like Napster and The Pirate Bay. There's rules for flea markets and pawn shops and Craigslist and so on, you can't just run a thin

      • I'd be interested if you happen to have a link to info on a court case where someone was convicted of giving out a dealer's phone number without any other simultaneous charges that would force them to take a plea deal, however it's still irrelevant to my original points. This was all an attempt to use an analogy to illustrate why equating hyperlinks and the content they link to is really stupid. Real-world analogies for digital activities are often flawed. Please understand my point instead of taking it lit
    • by Anonymous Coward

      That's not how it works.

      If the media industry considers linking copyright infringement, linking is copyright infringement, unless Google is big enough to push back. But that's it. What's infringement and what isn't decided by law or logic, but who has the bigger wallet and is able to bring the biggest amount of political pressure to bear.

      That's how all the torrent sites have gone down, despite not hosting any copyrighted material at all.

  • by Anonymous Coward

    Tim Berners-Lee, creator the Word-Wide Web, settled this question over 20 years ago.

    https://www.w3.org/DesignIssues/LinkMyths.html [w3.org]

    In particular, he pointed out that it is "a serious misunderstanding" to think that "A normal link is an incitement to copy the linked document in a way which infringes copyright". But here we are, 20 years later, and people are still making the same argument. Will it never end?!??

    • by Anonymous Coward

      Tim Berners-Lee doesn't get to decide the laws of a land he is not a citizen of. His status as inventor makes 0 difference.

      • by Anonymous Coward on Friday January 19, 2018 @05:16PM (#55963829)

        Tim Berners-Lee doesn't get to decide the laws of a land he is not a citizen of.

        Tim Berners-Lee was not "deciding the laws", he was drawing conclusions from the currently-existing laws. But there is a seemingly endless parade of corporations that want to change those laws. The corporations just keep trying again, again, and again. It's been over 20 years, and they're still trying to make linking copyright infringement...

    • by k6mfw ( 1182893 )
      because history is one damn thing after another.
  • Hey everyone, Look! Copyright Infringement is happening right over there.

    The fact that what they were pointing out, was a bunch of very specific nude photographs that many people should easilly recognize as copyrighted material, probably didn't even factor into their decision to point them out to the public. The fact that they were all nude may have something to do with ratings for the sensationalism of the story linking it, not the copyrighted material.

    Playboy on the other hand got lots of publicity

  • Do not put it on the internet.

    Once it's on the Internet, you have no control over what's done with it.

  • "Bears are not carnivores" claimed bears, when accused by the Herbivore Association of eating some of their members.
    "We are opportunistic omnivores," their spokesbear continued, "who may occasionally indulge in a little meat when available."

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