When he was creating the World Wide Web, Tim Berners-Lee did two things of note. The first was to invent the thing. The other was to make it free. I’m sure he talked about it on other occasions, but I think it was at the domain name system’s 21st birthday celebration where I saw Berners- Lee discuss (via video link) the importance of the decision not to patent the design and require people to pay a fee every time they clicked on a link; he praised his then-employer, CERN, for not pushing in that direction.
The web’s enormous success was not inevitable, though it may seem so now (especially to those who’ve never known a world without it). At the time, it competed with several other attempts to provide a unified interface to the internet’s many sources of information: Gopher, WAIS, Veronica (a search engine for Gopher), and Archie (a search engine for FTP file servers). One reason the web won was that in 1993 the University of Minnesota, where Gopher was developed, decided to charge a licensing fee.
Two things – this week’s leaked draft EU copyright impact assessment – remind that there are other ways to make linking a pasttime only for the well-funded expert. The first, Case C-160/15, GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker, is actually sort of framed as good news: “The posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally.” It’s the next bit that kills you: “In contrast, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.”
What is “for profit”? In the original case, GS Media declined to delete links to photographs on an Australian site that had published them without permission. When the photographs were originally deleted from their original location, both the site itself and its users posted links to new locations where they could be found (the Net was ever thus). So under the judgment GS Media, which is a leading commercial news and gossip site in the Netherlands, is at fault for not removing the links on request. GS Media was using the same kind of argument that major torrent sites use: they don’t host the material, they just tell you where to find it. If profiting from telling people where to find things incurs liability, all search engines are in trouble.
Let’s face it: in the case of torrent sites the claim of ignorance has always been mostly specious. While the technology itself certainly has many uses other than distributing unauthorized copies of copyrighted material, sites that organize their browsable links into user-friendly categories like TV shows and movies, or that adorn their search results with official show photographs are explicitly undermining any disclaimer they might make.
The problem is that telling people where to find something is in fact what a link is. It should be obvious, for example, that when net.wars links to the story that Facebook has deleted the world-famous photograph of the “napalm girl” that appeared in posts uploaded by the Norwegian newspaper Aftenposten and the Norwegian prime minister, I am showing my work – that is, the reference I used to back up the statement. I expect readers to know that it doesn’t imply that I endorse either Facebook’s action or the Guardian‘s reporting, or make any copyright claims. I do my best to use trustworthy sources. As this judgment’s effects ripple outwards, a lot will depend on how “commercial” is defined. Is a blog for-profit because it sells ads, uses Google analytics, or promotes its writer’s work? The target seems clearly to have been “sites like this one” – which would mean commercial media sites – but the court seems to be living in a time when those distinctions were still easy to make.
Similarly, the second of this week’s attacks on the link, the leaked copyright draft, seems to have had in its sights restoring to publishers some measure of control over or recompense from large, powerful search engines. You could summarize this as the same issue that arises between network providers and internet sites and services: who owns the audience? Does the content provider pay the access provider for delivering the audience, or does the access provider pay the content provider for giving the audience a reason to be there at all? It’s a symbiotic relationship, but both sides are always suspicious that the other guy is scooping the pool, that is to say, us.
As Julia Reda discussed in June, the EU has a history of viewing links as attempted copyright violations. In the early days, it was a struggle to get the exception for copies held temporarily in computer memory that linking implied. At this point, the web can’t be killed by such a measure. But it can be locked down to newcomers. The Facebook case is a good example of why that shouldn’t be allowed to happen.
Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard – or follow on Twitter.