IP: IMPORTANT DO READ AND MAKE UP YOUR OWN MIND --Microsoft and other linking bans put journalists at risk

[Dave Farber <farber () cis upenn edu>]

> Date: Sat, 13 May 2000 03:21:20 -0400
> To: politech () vorlon mit edu
> From: Declan McCullagh <declan () well com>
>
>
> Microsoft is demanding that Slashdot remove certain posts and *links* to 
> certain sites, including, apparently, areas of microsoft.com. The 
> lawyergram from Microsoft said:
>
> http://slashdot.org/article.pl?sid=00/05/11/0153247&mode=thread
> > "Included on http://www.slashdot.org are comments that now appear in 
> > your  Archives, which include unauthorized reproductions of Microsoft's 
> > copyrighted work... In addition, some comments include links to 
> > unauthorized reproductions of the Specification, and some comments 
> > contain instructions on how to circumvent the End User License Agreement."
>
> Microsoft claims such links are illegal under the Digital Millennium 
> Copyright Act. This creates a problem for journalists, who generally like 
> to provide links to ongoing controversies without spending an inordinate 
> amount of time in prison.
>
> Note Microsoft also wants to censor *discussions* of how to bypass the 
> license agreement, which might also reasonably appear in a news article, 
> but for now let's just focus on linking.
>
> Can I include links to offending sites in my articles? This is not an 
> academic question. I covered the /. controversy yesterday, which involves 
> allegations of Microsoft perverting open standards for its own gain, at: 
> http://www.wired.com/news/politics/0,1283,36282,00.html
>
> For instance, am I permitted to link to this copy of the supposedly 
> "secret" source code without risking a lawsuit? 
> http://nofuncharlie.com/archive/microkerb.txt
>
> Journalists in the past haven't worried about copyright law much at all; 
> if anything, we've instinctively supported it. Copyright law helps us to 
> get paid for what we do for a living.
>
> But nowadays intellectual property rights may have gone too far -- and are 
> interfering with free speech rights that are traditionally protected by 
> the First Amendment. If a web site somewhere on the Internet is violating 
> Microsoft's copyright, let Bill Gates' team of natty attorneys sue to take 
> it offline. But don't sue me and order me not to link to something that my 
> readers want to know about.
>
> It's no accident that Microsoft and Microsoft-funded trade associations 
> lobbied Congress to pass the Digital Millennium Copyright Act in the first 
> place.
>
> This isn't even the only case involving journalists and linking:
>
> * I received a copy of a temporary restraining order and a subpoena for 
> linking to a copy of a program that revealed Cyberpatrol's secret 
> blacklist: http://www.politechbot.com/p-01022.html
>
> * A bill before the House Judiciary committee would make it a crime in 
> some cases for anyone, including journalists, to link to drug-related web 
> sites: http://www.wired.com/news/politics/0,1283,36209,00.html
>
> * The motion picture industry has asked a federal judge to order 2600 
> Magazine to delete links to a program that decrypts DVDs: 
> http://www.wired.com/news/politics/0,1283,35394,00.html 2600's attorney 
> correctly pointed out that other news sites such as Wired link to the same 
> program and would be at risk: 
> http://www.wired.com/news/business/0,1367,36131,00.html I linked to the 
> DeCSS utility in a number of my articles, as did other reporters.
>
> Last year, I warned that "journalists should pay attention" because news 
> sites could be sued in linking cases: 
> http://www.politechbot.com/p-00814.html Now that Microsoft has upped the 
> ante by taking on Slashdot -- a new form of community journalism that just 
> won a people's choice Webby Award -- that outcome seems even more likely.
>
> I'm copying two Microsoft representatives. Perhaps they can assure me for 
> the record that my fears are unfounded.
>
> -Declan
>
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