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Litigation may put a snag in the seamless fabric of the World Wide Web. At least four suits winding through the courts could restrict the practice of linking that allows viewers to effortlessly jump from one Web site to another. At issue is the fundamental question of whether linking to a site with copyrighted material constitutes copyright infringement. The current spate of cases include the search engine MP3Board Inc.’s suit against the Recording Industry Association of America; the motion picture industry’s suit against a hacker magazine; Ticketmaster Corp.’s complaint against competitor Tickets.com; and the Mormon Church’s suit against former church members. While other cases have arisen over the past few years, the law on linking remains unclear. Copyright holders contend that Internet technology should not be used to deprive them of their intellectual property. But many law professors and attorneys argue that restricting the use of hyperlinks will violate freedom of online speech and impede the functioning of the Internet. “Nobody has been able to figure out the liability for linking to a site with infringing material,” Mark Radcliffe, a partner with San Diego, Ca.-based Gray Cary Ware & Freidenrich’s Palo Alto office said. “Most lawyers would say there isn’t direct infringement, which requires copying, but there is an open question of whether linking is contributory infringement.” Two of the first suits to address the debate over linking settled out of court in 1997. In one case, Ticketmaster Corp. sued to prohibit Microsoft Corp.’s online city guide seattle.sidewalk from linking to Ticketmaster’s Web site. In another case, a group of news organizations filed suit against TotalNews, a Web site that offers links to various media sites. The plaintiffs in both cases argued that links to their sites deprived them of advertising revenue. Among the cases now before the courts, MP3Board’s suit may be the most far-reaching, because it seeks a court ruling to protect search engines from linking liability. The Santa Cruz, Ca.-based company uses automated search engines to link to Web sites that provide downloadable MP3 files. The Recording Industry Association of America initially sent letters to MP3Board’s Internet service providers requesting that they remove MP3Board’s site or delete the company’s infringing links. The association subsequently requested MP3Board remove its infringing links or face legal consequences. In a pre-emptive strike, MP3Board filed a June 2 complaint in San Jose federal court seeking a declaratory judgment that the automated process of linking one Web site to another does not constitute copyright infringement — even if the link is to a Web site that contains copyrighted material. MP3Board says a search engine can’t be held accountable for the material on every link. “The search engine would no longer be able to have pure automated processes” if it had to edit every link, said MP3Board attorney Ira Rothken, a San Rafael, Ca., sole practitioner. “It would lead to paralysis of the Internet.” The suit, MP3Board Inc. v. Recording Industry Association of America Inc., 00-20606, claims that the RIAA is selectively taking legal action against small companies like MP3Board for linking, while at the same time allowing larger companies like Yahoo and Hotbot to provide Internet visitors with lists of links to infringing Web sites. The motion picture industry’s battle to prevent unauthorized copying of DVD movies also has evolved into a linking dispute. Eight motion picture studios won a preliminary injunction in January to prohibit defendants in Universal City Studios v. Reimerdes, 00-0277, from posting software that decodes scrambling technology that blocks copying of DVD movies. The defendants, which include the publisher of the hacker magazine 2600, withdrew the software from their Web site but posted links to other sites offering the software. The motion picture industry has asked the U.S. District Court for the Southern District of New York to extend its preliminary injunction to prohibit the defendants from posting the hyperlinks. The defendants “make perfectly clear that their motive in soliciting and providing these hyperlinks is to ‘circumvent’ the court’s preliminary injunction order by doing what they are already enjoined from doing,” the studios argue in court documents. But several law professors contend that the suppression of hyperlinks would impede the First Amendment by chilling the speech of third parties. “The 2600(r) Web site is no more a supplier of DeCSS than the New York Times is a supplier of drugs when it reports that crack is being sold on a particular corner in Harlem, or a court is by describing in an opinion materials it deems obscene and giving a volume and page number for the magazine where they are found,” the professors state in an amici curiae brief supporting the defendants. The brief was submitted by Harvard Law School’s Berkman Center for Internet & Society on May 30. In another suit, Ticketmaster seeks to block a competing online ticket seller from linking to its internal Web pages. A federal court indicated support for the practice of linking in a preliminary ruling in Ticketmaster Corp. v. Tickets.com, 99-7654. In his March decision, California Central District Court Judge Harry Hupp stated that hypertext linking does not by itself constitute infringement, since no copying is involved. But a federal court in Utah reached a different conclusion, focusing on the intent behind the linking activity. In Intellectual Reserve Inc. v. Utah Lighthouse Ministry Inc., 99-808, the Mormon Church seeks to block former church members from posting links to Web sites containing an internal church document. Utah District Court Judge Tena Campbell issued a preliminary injunction in December stating that the church is likely to prevail since the defendants “have actively encouraged the infringement of plaintiff’s copyright.” Ultimately, these cases may set legal guidelines for linking and determine the scope of copyright law on the Internet. “The question goes to what you believe copyright is,” Gray Cary’s Radcliffe said. While some copyright holders believe they have an absolute right to protect their work, he said, the courts have not wanted to stifle innovation by providing too much protection. “I think links should not lead to liability unless a person is benefiting economically from the link,” Radcliffe said. “In a case where all you’ve got is a straight line to another site, there is danger in making that infringement.” He said that in the case of MP3Board, he doesn’t believe the search engine has enough financial gain from linking to be held liable. Boalt Hall professor Pamela Samuelson agreed. If only a portion of a site contains infringing material, holding someone accountable for everything on the site “is going a little too far,” she said. But Samuelson said that she could conceive of incidents where linking would constitute infringement. For example, she said individuals could be liable for infringement if the site they link to contains only infringing material “and the site says something like: ‘Get your illegal material here.’”

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