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U.S. Federal Judge Rules Against Linking to Illegal Code on the Internet By Dan Calloway, TheWorldJournal.com 
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In an unprecedented ruling by a Federal Judge last Thursday, the future of how we conduct ourselves on the internet has been shaken as a result of the permanent injunction imposed on a hacker publication. This injunction prohibits them from linking to Web sites where visitors can download and ultimately distribute illegal code such as the DeCSS (De-Content Scrambling System). If a website operator knows that by linking to a site containing illegal code and by offering to link this site to others with the intent to spread the code, then that operator is in violation of the anti-trafficking provision of the Digital Millennium Copyright Act (DMCA), ruled by a New York State District Judge, Lewis A. Kaplan. This ruling comes after the Motion Picture Association of America (MPAA) sued a journalist by the name of Eric C. Corley after he and his employer, 2600: The Hacker Quarterly, decided to post the DeCSS source code on their website. This code allows users to circumvent the Content Scrambling System, which was developed as an encryption system to prevent piracy of DVDs. Mr. Corley's attorneys argued that he was protected under the First Amendment of the constitution, which guarantees the right of free speech and press. However, Judge Kaplan countered that claim by stating in his 93-page written documentation that he compared the posting of such code on websites to political assassination, bank robbery, and a disease. He argued further that linking to sites knowingly containing such code was the "functional equivalent" of providing the DeCSS code. Judge Kaplan's ruling is seen by many as the first step toward criminalizing many forms of linking currently taking place on the internet. Kaplan went on to say "Its [computer code] expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin's action." This ruling should not come as any great concern to legitimate website owners and operators, said one analyst. Judge Kaplan made it very clear that his ruling in the courts should find website operators in violation of the DMCA only if they show a willful intent to distribute illegal code. In other words, if you unknowingly link to a site that is distributing illegal code, then you will not be found in violation. It will be up to the courts to prove through a preponderance of the evidence that a website operator knowingly linked to websites distributing or making available illegal code for download on their sites. In cases where a hyperlink automatically started the process of downloading illegal DeCSS code, the hacker publication was clearly in violation of the law. © September 7, 2000 |
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