Internet Linking is Analogous to Citation

Everyone with whom I have discussed the issue of Internet linking agrees that Internet hyperlinks are a form of citation. But the subset of the population with whom I discuss these issues is not representative of the entire world, clearly. There are 2 schools of thought that I’ve encountered thus far that substantially differ from the above:

  1. The folks who think you need to obtain permission to link to another website, and
  2. The folks who think the author/owner/host/ISP of a webpage are responsible for any content accessible via hyperlinks on that site.

Neither one of these perspectives makes a whit of sense to me, seeing as I conceive of hyperlinks as akin to footnotes or citations, not republication of the material to which the link directs. Republication would be copying content on one webpage and posting it (in a manner beyond that permitted by fair dealing/fair use) on another page.

Because I can’t really understand how a hyperlink could actually be considered republication rather than citation, I am dumbfounded by people who adhere to – and sometimes threaten legal action in accordance with – either of the above two viewpoints. I actually find myself a bit stymied when pressed to defend my stance that hyperlinking is citation, because the alternative is so ludicrous in my mind. I need to work on this, which is why I’m posting this here.

1. Permission to Link

I have encountered a few individuals who have adamantly insisted that their websites were their property and thus they had the rights to dis/allow linking to their web content. I have actually been threatened with legal action from a blogger (with a PhD – which led me to expect that she’d at least be able to research the actual law) who insisted that I not link to her weblog from a password-protected site, which I found incredible! (In this specific case, although I knew she didn’t have a legal leg to stand on, I removed the link because I liked her writing and didn’t really want to make her mad, and also because I didn’t want to sink energy into a fight, but stopped following her blog lest I accidentally post a link she didn’t approve again.)

Apparently U.S. Judge Richard Posner also did or does think that permission to link to a webpage should be the law. In this blog post from last year, he states that:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary

in order to save the newspaper industry (from the competition of free news aggregation sites). While I have great sympathy for the difficult times the newspaper industry is experiencing in this era of digitization, the above suggested curtailing of fair use/fair dealing is appalling.

My understanding is that nothing has been legally established in Canada about permission-to-link, but in the U.S. there is a bit of case law establishing that (in the absence of other factors such as defamation or violation of – in Canada – moral rights) as BitLaw states,

“there would appear to be no legal means for preventing someone from including a link in one page to another”

2. Liability of Link-maker

SO, the Supreme Court of Canada has apparently agreed to hear Wayne Crookes’ appeal of a 2008 BC ruling (an appeal that was dismissed from BC Supreme Court) that linking to websites that contain allegedly defamatory material is not in and of itself defamation. Vancouver-based Crookes has sued a bagload of folk for libel based not on things they wrote on their websites but on thinks written on sites they linked to, or sites those sites linked to.

Whoa. Similar to how ISPs should not be responsible for the content of their customers, web authors should not be held responsible for the content on pages they link to! Citing something, in traditional publication, is hardly the same thing as agreeing with it, let alone authoring it. Hyperlinking is like citing – a pointer, a reference.Hyperlinking is not – as I think I clearly distinguished above – republication of content.

Hopefully the Supreme Court of Canada has agreed to hear this in order to set precedent (in accordance with the BC courts decisions) and thus stop the free-expression chill that such SLAPPs create. The alternative is just too ludicrous, right?




Filed under censorship, copyright, digitization, Intellectual freedom, Internet, IP, Other blogs, publishing

5 responses to “Internet Linking is Analogous to Citation

  1. In point 1, it really has to be a Ph.D. who does this stupidness, hasn’t it? Ninety-nine percent of all linking is done without needing to obtain permission, or requiring same. It’s only the anally-retentive-with-nothing-much-useful-to-say-or-know-how-to-write-properly who insists on permission. As a lawyer myself, I find these individuals can be great opportunities for profitable reward in litigation.

    Point 2: So, if I link to the Supreme Court of Canada, I’m automatically in agreement with it. So if I link to the Ku Klux Klan or the Communist Party of America in an article about extremism, I’m automatically liable for their content? So, if I link to Pokemons and Digimons, what kind of liability do I have? Well done, bloody Canada doesn’t understand Sweet Fanny Adams about law! This stuff is the first 10 weeks of any Year 1 LL.B. course!

    • greyson

      Re: 1 – It’s weird, because the one time I was personally threatened over linking, it was from somoeone I liked and respected – which is why it shocked me so much. She seemed to think she had the legal right to make policy regarding her own website that would be an exception to general US law. As she was a professional academic, I would have expected better research skills, and also some sense of what it means to cite other work.

      I am fairly sure she would never have confronted me over citing any of her published works in traditional format, either in print or on line without a hyperlink. But somehow it is different if, rather than allowing readers to click through, I force them to copy and paste a URL or DOI?

      Re: 2 – I don’t know whether Canada is especially egregious on this front (compared with other countries) or not. Thus far the court decisions regarding Crookes seem okay, but I will be shocked and appalled if the Superme Court sets a new precedent.

      • Re: 1. OMG, it really was an academic! Lord, a lot of these people are living on a different planet. The stuff called thinking that is happening inside our heads is *not real*, like my grandpa said, until we act on them in real life. These academics clearly didn’t get the memo.

        Re: 2. No, Canada really doesn’t know what the hell it’s doing. I am speaking with a professional opinion.

  2. The problem is that Canada has left these things to the courts to decide rather than to pass legislation. Also, in matters of commerce, Canada tends to be a follower rather than a trail blazer, so our related commercial jurisprudence can lag other countries.

    Our libel laws follow UK common law, and only significantly diverged from the UK when the UK common law on libel was changed a decade ago or so.

    I’ve never taken Crookes’ attempt to argue libel-by-hyperlinking to be anything other than tactical in nature. Senior lawyers have generally refused to follow his line of argument because they knew it was not likely to be successful. Dan Burnett, the BC lawyer arguing for the defendant, was quite confident Crookes argument would not survive. We remain fairly certain that the Supreme Court of Canada will affirm the BC Appeals Court ruling, with few changes.

    Burnett has been doing this case on the cheap. Without him doing so, P2PNet would not be likely represented.

    Crookes sued me (in Crookes v. Holloway) for running a wiki of Green Party of Canada internal candidates, one of which had a link on the wiki to his website, which had a link to another website which had had content he was suing over (Crookes v. Absurd as it has been, it was quite disruptive to my family. I was only able to afford a defense because a politician donated.

    Without donations and pro-bono help, the outcome of this legal challenge could have been quite different so far. Scary that the rights of so many can be decided by a private few.

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