CURRENTS

PREVIEW:
LINKING AND THE LAW

BY JOHN GIUFFO

When the publisher Eric Corley posted onto his Web site a set of links to sites containing an illegal computer code, he did so intending to get around a preliminary injunction by a judge who wanted to stop him from distributing the code. He never intended to help shape press law in the online environment. But it looks as if he might.

Corley, who publishes 2600, a Long Island-based hacker magazine and Web site, is a defendant in a lawsuit brought by the motion picture industry that seeks to prevent the distribution of DeCSS (as in De-Content Scramble System), a program that strips the encryption that prevents DVDs from being copied. The 1998 Digital Millennium Copyright Act prevented Corley from posting the code, so he decided that if he couldn't provide the code himself, he would provide links to it. It was an act of digital civil disobedience.

That made Judge Lewis Kaplan of the Southern District of New York angry. In August 2000, Kaplan made the temporary injunction he had issued in January permanent, and further barred Corley from even linking to the sites, many of which were hosted on overseas servers out of the reach of U.S. courts. In doing so, he devised a three-pronged test to determine when a court can limit a publisher from linking to another Web site.

In response, Corley, who publishes under the pseudonym "Emmanuel Goldstein," removed the links -- but then left the addresses posted so visitors could still get to the verboten sites. "That's one of the great ironies of this ruling," says Adam Clayton Powell III, of the Freedom Forum. "Anyone with the most elementary knowledge of the Internet can go to the site and get exactly the information that the studios don't want distributed."

So what practical effect did Judge Kaplan's ruling have? To many observers, it is one of the first rulings to curtail the rights of journalists online. They fear that by declaring this particular list of links illegal, Judge Kaplan has laid the groundwork for future lawsuits against journalists when they link to controversial information. "What this ruling really does is not stop the spread of software, but sets a precedent for restrictions on speech and press in the future," Powell says.

"Just as we are beginning to learn how to use this new medium, one of its most powerful informative elements --the ability to let readers go to original source material -- could come under a cloud which could be construed as prior restraint," Powell says.

"Inevitably, some people will end up making decisions that say, 'Well, let's just not do the link,'" says Rich Jaroslovsky, president of the Online News Association. "That to me is the textbook definition of a chilling effect."

The movie industry, meanwhile, wants to focus not on the First Amendment, but on the intellectual property issue. "My clients believe that there is a large practical effect in enforcing the law," says Charles Sims, an attorney at Proskauer Rose, LLP representing the studios. "The fact that it is possible to get drugs in this country doesn't mean drugs shouldn't be illegal." He also says Kaplan's decision has no repercussions for journalists, "unless you're paranoid."

Corley's attorneys took the case to the Second Circuit Court of Appeals, where a ruling could come at any time. But most observers expect the case to eventually wind up before the Supreme Court.

Journalism trade groups like the Online News Association, the Newspaper Association of America, and The Reporter's Committee for Freedom of the Press have filed an amicus brief on Corley's side.

Many legal observers' criticisms are focused on the three-pronged test that Kaplan devised. In order to limit a publisher from linking, the judge said the publisher must: 1) know illegal material is on the linked-to site, 2) know that it is against the law to link to circumvention technology, and 3) establish the link "for the purpose of disseminating that technology." It is that third prong that has observers worried most. What journalist doesn't disseminate?

"It goes to the intent of the author at the time of the publication of the link," says Jonathan Hart, a lawyer for Dow, Lohnes and Albertson who writes a monthly column on law for The Wall Street Journal's Web site, and who counts the Online News Association among his clients. "It creates another opportunity for journalists to be deposed about the editorial process."

Even Charles Sims thinks Judge Kaplan overreached with his test. "I don't think that the court can or will affirm the test," he says. Either way, it will be a few months, at least, before a final decision is issued.

 
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