For some time now there are ideas – even in Poland – to criminalize mere linking to copyright infringing materials on the Internet. This idea was also floated recently on the 5th Copyright Forum, by Polish copyright collectives like ZAiKS, and by a private company.

It’s not even the level of absurdity that gets me with ideas like that – it’s the fact that some people are apparently able to maintain a straight face while proposing it. It’s hard to be sure whether it’s a result to ignorance of some very basic concepts (not even regarding electronic communications – but human communication itself), or a conscious attempt at solving “the Internet problem”.

Anyway, let’s go from the top.

Internet hyperlinks fulfil the same role as bibliographic information: they merely inform where a given referenced content resides, without transmitting nor copying any of it in and of themselves. Link itself does not and cannot infringe upon anybody’s rights – it’s just information about where to look for a given content.

That means that a link is also useful information for those trying to combat copyright infringing materials. Thanks to links it’s easier to find content published without proper authorization in order to remove it from the Internet – of course in accordance with due process of law. Why do organisations that claim to work in authors’ interests try to deny themselves such a useful tool?..

Crucially, a person linking to some content has no way of ascertaining the legal status of that content. Even lawyers often have problems with that, due to copyright law’s Byzantine level of complication. Why would it be okay, then, to require such knowledge and insight from any person linking any content on the Internet?.. By the way, I wonder if every single link on ZAiKS website is “legal”…

Interesting, also, is what should the sanctions be for such a heinous crime? Should we expect a Police raid and extradition for a simple act of linking some content on our website?

And what about links to websites with such links? If a website containing “illegal links” would be itself illegal, linking to it would also be illegal, right? And how about links to websites that link to such websites? And so on… We can either stop it at the only sane place – the very beginning – by saying “links can’t be illegal”, or it’s turtles all the way down.

Regardless of possible sanctions, making linking potentially illegal would make Internet users afraid of linking. The very core functionality of the World Wide Web would suddenly become a minefield. The effects would not be very different from Iran’s “halal Internet” – with the small difference that purposeful censorship would be replaced with self-censorship. Maybe that’s the real aim of this proposal?

Proponents of this “solution” claim it is necessary due to ineffectiveness of notice and take down procedures of removing infringing materials. People that employ themselves with intentional commercial copyright infringement can, after all, change addresses and domain names very easily, and very fast. They can register their website or company abroad, making enforcement harder.

For some reason proponents of making linking illegal seem to think that warez-sites (which are the direct target of this proposal) operators can’t do the same thing with link farms as they do with their file hosting. Trying to enforce removal of “illegal” links will face the very same problems enforcement of notice and take down procedures face, and will be similarly ineffective.

It will, however, have one tangible effect: people registering and hosting perfectly legal websites in Poland will be afraid to link to anything – how can they be sure it’s not illegal?..

That’s still not everything, though! Obviously, searching for “infringing links” and sending out take down notices would have to be automated, just as infringing materials are often searched for and handled automatically. Such algorithms make mistakes, leading to removal of perfectly legal content.

For big players that might not seem to be a problem, but small music producers or individual artists – especially those publishing their works under libre licenses – will be severely disadvantaged, due to incomparably fewer resources at their disposal for demanding restoring of their incorrectly removed/blocked content. Considering that for such artists their freely available content might be an important element of their business model, for example helping build their fan base, such removal/blocking of content can cause real financial losses. Would copyright collectives fight for the rights of libre artists in such a situation?..

The same problem that is so clearly visible with notice and take down at the source will only be amplified if some links would be “illegal”. If (as with notice and take down) there are no sanctions for unfounded removal of a non-infringing link, service providers, hosting operators, etc, will prefer to be “rather safe than sorry” and remove everything that gets a notice. Links to libre-licensed content will get removed, and artists publishing them will inevitably suffer concrete financial and non-financial losses.

I do think, sometimes, that maybe such absurd ideas should be supported, as their introduction would help push people out of walled gardens and into decentralised, encrypted networks and tools like RetroShare, TOR or FreeNet.

Tools that would be much more effective in combating censorship and surveillance of their users.

Update¶

The Court of Justice of the European Union has just ruled on a case with linking as the central issue – the verdict: linking is not illegal.

Now, this does not cover the exact case discussed here (linking to a material that is published illegally), but is nonetheless an extremely important outbreak of common sense.