Wednesday, April 06, 2005

The Steps of Separation of Forbidden Linkage

Last month the German online magazine Heise was prohibited to put a link to a site that provided forbidden anti-cirumvention software in one of their articles. The written opinion of the court is now available, of which Heise itself has the following summary:
The Munich court ruled that, by providing a link to the company's homepage, heise online had intentionally provided assistance in the fulfillment of unlawful acts and is thus liable as an aider and abettor in accordance with Section 830 of the German Civil Code just as the vendor in itself is. While no link was provided to download the software, it could be downloaded two clicks later, which the court found to be inadmissible. For the court, it sufficed that readers could directly access the vendor's web site from the link in the report. The court also did not find it relevant that readers were also able to find the product via a search engine. Rather, it ruled that providing a link made finding the software "much easier", thus increasing the danger of violations of copyrights considerably.
Interestingly enough the German court frees Heise from accusations on the basis of the anti-circumvention provision of the German copyright law (Section 95a, German), and instead relies on the Civil Code to come to a conviction. This is unlike, for example, the conviction of the hacker magazine 2600 under the DMCA's anti-circumvention provisions for posting the DeCSS.exe some years ago. Assistance, inducement...there are enough legal roads outside copyright to protect intellectual property.

Remains the question, how many steps of separation must there be for a link to be legal? Apparently two is not enough. Three, four, five - when does clicking become so cumbersome that there cannot be liability for assistance in unlawful acts? "See no evil, speak no evil, hear no evil", would a be a nice title for this ruling. With a contradictory subtitle that underlines the internet's reality when it comes to attempts to suppress forbidden information: You can't click, but you can't hide.


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