huridocs-tech Copyright Decision Threatens Freedom to Link

FYI
Harsh Kapoor
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Copyright Decision Threatens Freedom to Link
By CARL S. KAPLAN


In a ruling that could undermine the freedom to create links on the Web, a
federal judge in Utah has temporarily barred two critics of the Mormon
Church from posting on their Web site the Internet addresses of other
sites featuring pirated copies of a Mormon text.

In issuing a preliminary injunction on Monday, Judge Tena Campbell of the
United States District Court in Salt Lake City said it was likely that the
critics, Sandra and Jerald Tanner, had engaged in contributory copyright
infringement when they posted the addresses of three Web sites that they
knew, or should have known, contained the copies. The copyrighted material
was the text of the Church Handbook of Instructions, a
limited-distribution book that enables lay clergy to administer the
affairs of the Church of Jesus Christ of Latter-day Saints.

Lawyers for Intellectual Reserve Inc., a corporation that holds the
intellectual property assets of the Mormon Church, praised Judge
Campbell's decision. The temporary order will stay in effect until the
case is tried or settled.

"We are certainly pleased the court is upholding copyright law," said
Berne S. Broadbent, copyright lawyer for IRI.

But other lawyers found the court' decision disturbing and, if it stands,
a possibly dangerous precedent that could inhibit one of the most
fundamental features of the Web --the ability to direct viewers from one
web site to another. Although the Tanners' case revolves around the
posting of Internet addresses or URLs, and not actual linking, the
copyright issues are similar, lawyers said. "If that decision ultimately
holds up, then linking is definitely dead," said Jeffrey R. Kuester, a
copyright lawyer who practices cyberspace law at Thomas, Kayden,
Horstemeyer & Risley in Atlanta. "If you can't post an address without
running into copyright infringement, how can you link?"

"The Web is all about links," Kuester said. "Without linking, there is no
Web."

The Tanners, a married couple who are long-time critics of the Mormon
Church, are founders of the Utah Lighthouse Ministry, which operates a Web
site with commentary about the Mormons and other information.

In July, the Tanners posted on their Web site the tenth chapter of the
Church Handbook of Instructions, along with portions of two other chapters
-- a total of 17 pages of the 160-page book. Brian M. Barnard, a lawyer
for the Tanners, said in an interview that the couple posted the excerpts
in an effort to help people who had inquired about Church activities. The
Tanners received a copy of the book in electronic form from an anonymous
source, he said.

In October, the church, acting through its IRI arm, filed a lawsuit
against the Tanners in United States District Court for the Central
Division of Utah, claiming that the posting of the book's 17 pages
amounted to copyright infringement. Later, Judge Campbell issued an
initial, temporary restraining order banning the direct posting of the
book's contents.

In early November, according to legal papers, the Tanners posted on their
site an e-mail from a reader that said: "Church Handbook of Instructions
is back online!" The e-mail went on to list three Internet addresses at
which copies of the entire Handbook or portions of it could be obtained.

Claiming that the Tanners were improperly pointing viewers to sites that
contained illegal copies of the handbook, lawyers for the Mormon Church
succeeded in getting Judge Campbell to issue an expanded restraining
order. This week, she also issued a formal preliminary injunction, which
prohibits the Tanners from directly posting the contents of the handbook
or posting on their site "addresses to Web sites that defendants know, or
have reason to know, contain the material alleged to infringe plaintiff's
copyright."

In reaching her decision, Judge Campbell made two key conclusions. First,
she reasoned that anyone who went to a Web site and viewed a pirated copy
of the handbook was probably engaging in direct copyright infringement,
because that viewer's browser automatically makes a local copy of the
text.

In addition, Judge Campbell reckoned that by posting the addresses to the
pirate sites after they were ordered to take down the handbook, and by
otherwise assisting people who wished to locate the pirate sites, the
Tanners were liable under a theory of contributory copyright infringement.
By their actions, the Tanners "actively encouraged" browsers to directly
infringe the church's copyright, Judge Campbell wrote.

What makes Judge Campbell's 10-page opinion significant, lawyers said, is
that there are few other instances where a court has ruled on the practice
of knowingly linking to or posting addresses for sites with infringing
material.

Sandra Tanner said she and her husband are considering an appeal of Judge
Campbell's order to the United States Court of Appeals for the 10th
Circuit. Otherwise, the case will proceed to trial.

"I don't believe it is illegal to tell someone where to go to read the
handbook," Tanner said.

Broadbent, the lawyer for IRI, claimed the court's order was a
straightforward application of the law of contributory infringement. "We
regard what the Tanners did as an end-run around the initial order," he
said.

Broadbent added that IRI recently contacted the operator of Prestige Elite
Communications in Australia, as well as half a dozen other sites which, he
claimed, had posted portions of the handbook, requesting that they stop
directly infringing church copyrights. He said that with one exception,
all the sites IRI contacted have taken down the material. David Gerard,
the operator of the Prestige site, did not immediately respond to an
e-mail request for an interview.

Jessica Litman, a law professor at Wayne State University in Detroit and
an expert on intellectual property, said she believes the court was wrong
to issue a preliminary injunction.

Pointing out that there can be no contributory infringement without direct
infringement, she said it was clear to her that when members of the public
used the addresses provided by the Tanners and visited a site to look at
the handbook, any copies their browsers made were permissible and
protected by the concept of fair use.

In any case, Litman asserted, the mere posting of a Web address could not
amount to actively encouraging someone else's infringement. "If I give a
footnote in a law review article for a plagiarized book, that seems to be
just telling people where the book is, not materially facilitating their
infringement," she said. "This decision is like saying that providing
footnotes to illegal material is illegal."

The upshot, said Litman, is that the decision could discourage people from
giving addresses of Web sites or linking to them out of concern for
copyright liability.

Jessica R. Friedman, a copyright lawyer with Reboul, MacMurray, Hewitt,
Maynard & Kristol, a New York firm, said she also believed that the court
went too far in issuing a preliminary injunction. But she said the case
was a "close call" given the letter of copyright law.

"It's not an unreasonable decision, but it is a little scary," she said.

=========================================================
          Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments
          and suggestions.




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