Freedom to hyperlink has copyright consequences

How a recent Supreme Court ruling could impact torrent sites


The Supreme Court of Canada gets the Internet.  This week, it unanimously ruled that linking to libelous or defamatory content is not the same thing as publishing libelous or defamatory content. The case involved a former Green party campaign manager, Wayne Crookes, who wanted one Jon Newton to remove links from an article about Crookes on his website. While Newton’s article was not libelous, Crookes felt the material he linked to was. Publishing the link, Crookes’s attorneys argued, was no different than publishing the material it linked to.

The Court did not agree.

First of all, there’s an unsolvable technical problem involved in deeming linking and publishing to be the same thing. Unless I’m linking to my own content, I have no control over what lies at the other side of my link. The page I link to today may change tomorrow. If linking in Canada were to be considered publishing, then publishing would instantly become too risky to pursue for anyone with assets to protect. It would be like telling a cookbook publisher that the latest tome about cupcakes they just sent to the printer may or may not hit stores with images of child pornography included.

The effect on the Internet in Canada, the Court ruled, could be “devastating.”

There are other reasons why the ruling makes sense—chief among them is common sense itself. A link is not (necessarily) an endorsement. I might link to something specifically because I find it stupid, offensive, or appalling. A link, the court ruled, is simply a reference—like a footnote, and the context surrounding the use of a reference is paramount.

But it gets more complicated still. All of this talk of publishing and footnoting, though useful to a degree, ultimately fails to recognize that the Internet is its own new thing, and not simply an electronic extension of print.

I don’t have control over what lies on the other side of my link, but I don’t necesarily have control over the links on my own page, either. If I allow comments on my site, then anyone can throw a link up on my page. And what about search engines? Google “publishes” billions of links on their own page that no human has (or could have) ever vetted. Any libelous, defamatory, illegally pornographic or copyright infringing web page on the Internet could potentially show up as a link on Google.com. To hold Google responsible for this content would be to shut down Google.

And what about other search engines? Isohunt, a Canadian search engine specializing in providing links to torrent files, is currently embroiled in legal conflict with the Canadian Recording Industry Association. CRIA argues that since the primary purpose of Isohunt is to connect users to infringing material, then Isohunt itself is guilty of infringement. In other words, at least in Isohunt’s case, CRIA thinks linking should be considered the same thing as publishing. The Conservatives’ copyright bill (C-11), currently being debated in Parliament, lends considerable heft to their argument. It decrees that if a site is “primarily designed” to enable infringement, then it is guilty of infringement itself, even if it publishes no infringing material. (Once the bill is law, expect Isohunt to rebrand itself as “Niceohunt,” a site primarily designed to link users to nice pictures of cute little kittens, and then, to some lesser degree, torrent files.)

The point is, with the Supreme Court of Canada ruling in favor of our right to link, and with Parliament about to make C-11 a law, the legal battles over the Internet in Canada may just be beginning.


Freedom to hyperlink has copyright consequences

  1. rogers and bell are making canadian consumers feel miserable and broke…

    • Canadian consurmers are allowing it – fight back!  Check out the alternatives.  I’m using TekSavvy and Primus. Nothing fancy but beats living with Bell and Rogers incessant nickel and diming!

  2. Jesse,

    I offer http://c11.ca/5369 as a reply to your article.

    Short-form is that I believe the new form of secondary liability included in C-11 for services that are “designed primarily to enable acts of copyright infringement” is consistent with what the Supreme Court judges said in this case.

  3. No, Isohunt will remain legal since any actual infringement will occur downstream from it. (And BTW, TELUS, what’s with the idiotic cartoon flying across the prose I’m trying to read? Ads should inform, not irritate!) 

  4. Its not something you just dump something on. Its not a big truck, its a series of tubes.

  5. If the so called conservative congress is so very concerned about excessive regulation of business than they ought to revamp the entire patent and tradmark system to make it harder for the holders of these patents and trademarke to sue for violations. Everybody pays for the legation one way or another. Many businesses are seriously harmed by having to defend themselves against lawsuits brought by all the holders of these unreasonable patents and trademarks. Consumers are forced to pay much higher prices for the patented and trademarked services and products than would otherwise be the case.I canot understand why the government continues to try to regulate the internet whenits comes to tradmarks and patents. This is for orrin hatch the united states  senator thats always raving and ranting about all the so called copyright and trademark violations on the internet. MR hatch please don’t kill the goose that laid the golden egg.

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