Ernest Miller reports that Swarthmore now is yanking the Net connections of students who linking to a page that links to a page containing the infamous Diebold memos.
So Swarthmore students can’t make a two-hop link to the memos (i.e., a link to a link to the memos). Can they make a three-hop link, say by linking to Ernest Miller’s report? Can they make a four-hop link, say by linking to the page you are reading right now? Can they make a five-hop link, say by linking to my personal home page? Maybe some enterprising Swarthmore student will do an experiment to find out.
UPDATE (1:40 PM, Oct. 27): James Grimmelmann at LawMeme says that Diebold’s own home page contains a five-hop link.
Here’s the 9-hop link from Diebold; based on James Grimmelmann’s suggestion:
http://www.diebold.com
click on ‘news room’
click on ‘America’s Future – Smart Globalization’
click on ‘BusinessWeek|online’ (graphic at bottom)
type ‘freedom-to-tinker’ in the search box and click ‘go’
click on ‘fighting for the freedom to tinker’
click on ‘Freedom to Tinker’
click on ‘Ernest Miller’s report’
click on ‘Targeting Diebold with Electronic Civil Disobedience’
click on, say, ‘U Penn’
This is as short as I could make it. Further improvements welcome!
The DeCSS decision is talking about “People who run websites”, that is, those with power to change the content (whether because they are writers or editors).
The take-down DMCA liability is to “People who provide services to websites”, that is, those with power to shut it off, but generally not to edit pages (because they are ISPs)
My point was to show where the thinking about not linking was coming from, not saying the same DMCA provisions were being discussed.
That is, I believe they’re not pulling this stuff out of thin air, but it comes from a certain background.
Though I should note that I am not a lawyer.
Seth,
thanks for the additional clarification. I guess I’m confused by the use of the term “operators” here not being clear. I’ve read through all the statutes and I can’t find the term used. There are many references to “service providers” which I would tend to equate with “operators” but maybe the judgement defines differently? It kind of hints at that but I don’t see anything definitive.
Krill
1. Question: Are the documents currently being P2P shared? If so, do you anticipate ISP’s divulging identities?
2. Statement: This is so out of whack with Sec. 107 (1), (2), and (4), it’ll never stand. If filed, it’s a total SLAPP.
ISP’s aren’t being referenced there. “Operators” means roughly writers, editors, publishers.
I think the idea is basically that they’ll make a determination of the intent behind the link.
Seth,
thanks for the reference. The ruling does trouble me somewhat, but what is interesting is the apparent wishful thinking:
“…Such a standard will limit the fear of liability on the part of web site operators…”
Doesn’t seem that way, although it does depend on one’s interpretation of “web site operators”. Does this include ISPs? I’m guessing that to be the belief.
Assuming that, the immunity provision is an enormous incentive to thos ISPs to simply play it safe. Whether the “standard limits the fear” of ISPs is irrelevant when they have nothing to gain by taking the risk.
Krill
For the thinking here, which almost certainly comes from the Reimerdes (DeCSS) case, see the excerpt at my post
Diebold memos and linking prohibitions at Swarthmore
…can they make a seven hop link, by linking to, well, anywhere?
A link to the NY Times, or the South China Morning Post, say, can get you to pretty much anywhere within 7 clicks or so.
Actually, I like cases like this. It helps to expose the total absurdity of the law, and how it can be abused (and surely it is here). Even better, the students themselves don’t seem to be under any direct threat of action so far. That could change – but perhaps Diebold rightly realizes the scale of PR catastrophe that would result? Let’s hope so.
More to the point, let’s hope that Diebold eventually realizes that this isn’t a PR problem and actually deals with the root cause.
Krill
And in the same vein, how high does the indirection level have to escalate before an “official” Swarthmore page runs afoul of the ban and hilarity ensues?