(d)
INFORMATION LOCATION TOOLS.—A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j), for injunctive or
other equitable relief, for infringement of copyright by reason of the provider
referring or linking users to an on-line location containing infringing material
or infringing activity, by using information location tools, including a
directory, index, reference, pointer, or hypertext link, if the service provider—
(1)(A)
does not have actual knowledge that the material or activity is infringing;
(B)
in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or
(C)
upon obtaining such knowledge or awareness, acts expeditiously to remove, or
disable access to, the material;
(2)
does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability to
control such activity; and
(3)
upon notification of claimed infringement as described in subsection (c)(3),
responds expeditiously to remove, or disable access to, the material that is
claimed to be infringing or to be the subject of infringing activity, except
that, for purposes of this paragraph, the information described in subsection
(c)(3)(A)(iii) shall be identification of the reference or link, to material or
activity claimed to be infringing, that is to be removed or access to which is
to be disabled, and information reasonably sufficient to permit the service
provider to locate that reference or link.
Study examines DMCA
Cease-and-Desist Letters
Laura Quilter and Jennifer
Urban, Director of the Intellectual Property Clinic at the University of
Southern California, have released a summary report of findings from a study of
takedown notices sent pursuant to Section 512 of the Digital Millennium
Copyright Act, and submitted by the recipients to the
Chilling Effects clearinghouse. The
report, titled "Efficient Process or 'Chilling Effects'? Takedown Notices Under
Section 512 of the Digital Millennium Copyright Act," traces the use of the
Section 512 takedown process.
According to the report nearly
one-third of takedown notices submitted to online service providers under the
DMCA are for claims that may not justify takedown. One of 11 notices had
significant statutory flaws (failure to properly identify the allegedly
infringing work, failure to provide contact information, failure to provide a
way to locate the allegedly infringing work etc.), that render them invalid.
Another result of the study:
Businesses targeting apparent competitors accounted for 57 % of the takedown
notices submitted to Google Inc. seeking removal of links from the index.
The
Global Online Freedom Act of 2007 was approved in a unanimous voice vote by
the Foreign Affairs Committee. The bill seeks to "prohibit
US internet companies from cooperating with repressive regimes that restrict
information about human rights and democracy on the internet and use personally
identifiable information to track down and punish democracy activists."
Under § 202 of The
Global Online Freedom Act of 2006, businesses that provide search engine
services would be prohibited from altering the operation of the search engine
with respect to “protected filter terms” at the request of the governments of
designated Internet-restricting countries like China, or in a manner that would
be likely to produce different search results for users accessing the service
from within the designated countries.This requirement was removed from GOFA in
June 2007.
Under § 203 of The Global Online Freedom Act of 2007, businesses providing
search engine services would only be required to report to a newly-created Office of
Global Internet Freedom the terms and requirements for filtering that are
specified to them by the governments of designated countries.
SEC. 203. Transparency
regarding search engine filtering (Global Online Freedom Act of 2007)
Any United States business that creates, provides, or hosts an Internet
search engine shall provide the Office of Global Internet Freedom, in a
format and with a frequency to be specified by the Office, with all terms
and parameters used to filter, limit, or otherwise affect the results
provided by the search engine that are implemented--
(1) at the request of, or by reason of any other direct or indirect
communication by, any foreign official of an Internet-restricting
country; or
(2) to comply with a policy or practice of restrictions on Internet
freedom in an Internet-restricting country.
SEC. 202. Integrity of search
engines (Global Online Freedom Act of 2006)
Any United States business that creates, provides, or hosts any Internet
search engine may not alter the operation of such search engine with respect
to protected filter terms either--
(1) at the request of, or by reason of any other direct or indirect
communication by, of a foreign official of an Internet-restricting
country; or
(2) in a manner intended or likely to produce different search engine
results for users accessing the search engine from within an
Internet-restricting country as compared to users elsewhere.
Utah last month enacted
Utah SB 236, the "Trademark Protection Act," a law
that effectively prohibits the competitive use of trademarked terms as keyword
advertising triggers. The Act establishes a new type of mark called an
Electronic Registration Mark. Once a mark is electronically registered, the
statute prohibits use of the Electronic Registration Mark to trigger advertising
for a business, goods, or services of the same class as those represented by the
Electronic Registration Mark.
What happened to lawful competitive advertsising? No wonder, the
new law isn't winning any praise. A Google spokesman said Google believes
the new law is likely to be challenged in court and struck down as
unconstitutional.
After a meeting with senior
executives from Google, eBay, Microsoft, America Online, Yahoo, 1-800 Contacts
and Overstock.com met, the state has a better idea of who they
are up against and now have to decide if the law is worth a
legal fight.
Rep. David Clark, House majority leader and co-sponsor of the suddenly
controversial legislation said after the meeting: "I don't know that we'll
repeal it, but we understand we've got some work to do."
de Commission (FTC) released a
set of
proposed principles to guide the development of self-regulation in the area
of online behavioral advertising. Behavioral advertising means the tracking of a
consumer’s activities online – including the searches the consumer has conducted,
the web pages visited, and the content viewed – in order to deliver advertising
targeted to the individual consumer’s interests. One proposal is aimed at more
transparency and consumer control:
"Every
website where data is collected for behavioral advertising should provide a
clear, concise, consumer-friendly, and prominent statement that
(1) data about
consumers'
activities online is being collected at the site for use in providing
advertising about products and services tailored to individual consumers’
interests, and
(2) consumers can choose whether or not to have their information
collected for such purpose. The website should also provide consumers with a
clear, easy-to-use, and accessible method for exercising this option."
The
guidelines are partly intended to adress concerns over the Google-DoubleClick
deal. So far Google is not engaged in behavioral advertising, but declines to
say whether the merger will facilitate
respective plans.
Also see:
Alexis, Alexei, Behavioral Advertising - Search Engine Firms Expected to
Face Continued Hill Scutiny, Electronic Commerce & Law Report 2008, 121-123
(a)
Prohibition on distribution of information relating to manufacture of controlled
substances
(1) Controlled substance defined - In
this subsection, the term `controlled substance' has the meaning given that term
in section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)).
(2)
Prohibition - It shall be unlawful for any person--
(A)
to teach or demonstrate the manufacture of a controlled substance, or to
distribute by any means information pertaining to, in whole or in part, the
manufacture or use of a controlled substance, with the intent that the teaching,
demonstration, or information be used for, or in furtherance of, an activity
that constitutes a Federal crime; or
(B)
to teach or demonstrate to any person the manufacture of a controlled substance,
or to distribute to any person, by any means, information pertaining to, in
whole or in part, the manufacture or use of a controlled substance, knowing that
such person intends to use the teaching, demonstration, or information for, or
in furtherance of, an activity that constitutes a Federal crime.
I
s it
a federal crime to knowingly link to drug-related websites?
August
23, 2000: McCullagh, Declan, Only
News That’s Fit To Link, Wired:
"Internet journalists, beware: A recent ruling by a federal judge could imperil your ability to place hyperlinks in some news
articles."
The Unlawful Internet Gambling Funding Prohibition Act was
approved by the House Judiciary crime subcommittee. The bill could require
Internet service providers to delete hyperlinks to offshore gambling sites.
May 7, 2003: McCullagh, Declan, Online
gambling loses the house, ZDNet:
"A bill that a House panel approved on Tuesday afternoon takes a two-pronged approach toward curbing Internet
wagers."
The
proposed Online Privacy and Disclosure Act of 2002,
inter alia, contends that the company can reserve the right to change
its privacy policy without notice to the individual, but must provide
hyperlinks to at least three of the most recent privacy policies if they are
substantially different in some form or fashion from the current privacy
policy.
The Bipartisan Campaign Reform Act of 2002 (BCRA) is U.S.
Congressional legislation which regulates the financing of political campaigns.
It is also known as the McCain-Feingold law. It was carefully drafted NOT to
include online press, commentary or blogs.This
allowed people last year to direct visitors to the official Website of any
presidential candidate without that link being considered a contribution to the
campaign, a political activity or an illegal donation.
Also last year a federal judge ruled that many of the
F.E.C. rules were too lax and specifically asked it to address the question of
Internet activity:
The "exclusion of Internet communications
from the coordinated communications regulation severely undermines" the campaign
finance law's purposes.
So these days the Federal Election Commission
is beginning the process of extending its controversial 2002 campaign finance
law to the internet.
One question will be, whether a Web page's link
to a candidate's site constitutes a contribution.
But how would that be calculated? (By
law, contributions over $1,000 or services of an equivalent value must be made
public).
The ideas on this are getting very bizare: The
FEC already has received an advisory opinion suggesting the value placed on a
blog that praises a politician or links to a campaign website might be based on
what percentage of the computer cost and electricity went to political advocacy.
The campaign finance law has a press exemption, but
it is unclear whether bloggers or online journals fit that description.
Several news sources and blogs have specualted if the
extension of the
Bipartisan Campaign Reform Act of 2002 could mean fines to sites that
improperly link to official campaign sites or even the end of political blogs.
March 6, 2005: Kornblut, Anne,
F.E.C. to Consider Internet Politicking, New York Times:
"Federal election commissioners are
preparing to consider how revamped campaign finance laws apply to political
activity on the Internet, including online advertising, fund-raising e-mail
messages and Web logs."
March 3, 2005: McCullagh, Declan,
The coming crackdown on blogging, CNet:
"In just a few months, he warns, bloggers
and news organizations could risk the wrath of the federal government if
they improperly link to a campaign's Web site."
February 15, 2005: McCullagh, Declan,
Political Web ads may be curtailed, CNet: "The Federal Election Commission plans to
begin reviewing next month whether the Internet should continue to enjoy its
privileged status as exempt from some of the stricter dictates of a 2002
campaign finance law."
On March 8
Sens. McCain and Feingold issued a statement: "... The latest
misinformation from the anti-reform crowd is the suggestion that our bill will
require regulation of blogs and other Internet communications. A recent federal
court decision requires the Federal Election Commission to open a new rulemaking
on Internet communications. The FEC will be looking at whether and how paid
advertising on the Internet should be treated, i.e., should it be treated
differently than paid advertising on television or radio.... So far, the FEC has
not even proposed new regulations... This issue has nothing to with private
citizens communicating on the Internet. There is simply no reason - none - to
think that the FEC should or intends to regulate blogs or other Internet
communications by private citizens. Suggestions to the contrary are simply the
latest attempt by opponents of reform to whip up baseless fears. BCRA was
intended to empower ordinary citizens, and it has been successful in doing so.
We will continue to fight for that goal."
Update 29:
The Federal Election Commission (FEC) issued proposed rules
attempting to eliminate any restrictions on political blogging.
The Commission will take a minimalist approach to
regulating political campaign activities on the Internet. The proposed
regulations specifically exempt any Internet activity by unpaid individuals or
volunteers in their own residences, on their own equipment or on publicly
available equipment. This ends the discussion,
whether a Web page's link to a candidate's site can constitutes a contribution,
before it really started.
"Political bloggers and other online
commentators narrowly avoided being slammed with a
sweeping set of Internet regulations this week."
March 21,
2005:
McCullagh, Declan,
Internet election rules could be blocked, CNet:
"The Internet would be immune from campaign finance laws that could restrict
freewheeling political discourse, according to a new proposal in Congress."
The U.S. Department of Justice (DOJ) will push
for new legislation that
requires all commercial
Web sites to label every
page that includes adult
material in an effort to
protect Web users from
pornography. The
proposed law is called "Child Pornography
and Obscenity Prevention
Amendments of 2006"
and
would prohibit
commercial Web sites
from initially
displaying sexually
explicit material
without further action,
such as an additional
click.
The DOJ initiative would
also
make it illegal for a
person to knowingly
deceive others into
viewing obscene
materials. This could
effect the use of
metatags, cloaking,
doorway pages or other
search engine
manipulation methods
that are used by e.g. some
porno-sites that try to
lure people to their
sites although they are
searching for "innocious
content" like toy names
or popular film stars.
McCullagh, Declan,
Gonzales calls for
mandatory Web labeling
law, CNet:
"Web
site operators posting
sexually explicit
information must place
official government
warning labels on their
pages or risk being
imprisoned for up to
five years, the Bush
administration proposed
Thursday."
July 2006 Update:
The Adam Walsh Child Protection & Safety Act has
been signed into Law by President Bush. The law is designed to stop sites with
potentially offensive material using meta tags to attract viewers under false
pretences.
"Whoever knowingly embeds words or digital images into the source code of a
website with the intent to deceive a person into viewing material constituting
obscenity shall be fined under this title and imprisoned for not more than 10
years," says the bill.
It carries a stiffer penalty for activity aimed at children: "Whoever
knowingly embeds words or digital images into the source code of a website with
the intent to deceive a minor into viewing material harmful to minors on the
internet shall be fined under this title and imprisoned for not more than 20
years."
(1) Ein Diensteanbieter, der
mittels eines elektronischen Verweises einen Zugang zu fremden Informationen eröffnet,
ist für diese Informationen nicht verantwortlich,
1. sofern er von einer
rechtswidrigen Tätigkeit oder Information keine tatsächliche Kenntnis hat und
sich in Bezug auf Schadenersatzansprüche auch keiner Tatsachen oder Umstände
bewusst ist, aus denen eine rechtswidrige Tätigkeit oder Information
offensichtlich wird, oder,
2. sobald er diese Kenntnis
oder dieses Bewusstsein erlangt hat, unverzüglich tätig wird, um den
elektronischen Verweis zu entfernen.
(2) Abs. 1 ist nicht
anzuwenden, wenn die Person, von der die Informationen stammen, dem
Diensteanbieter untersteht oder von ihm beaufsichtigt wird oder der
Diensteanbieter die fremden Informationen als seine eigenen darstellt.
A
service provider is not liable for damages incurred by a person if the service
provider refers or links users to a web page containing an infringing data
message or infringing activity, by using information location tools, including a
directory, index, reference, pointer, or hyperlink, where the service provider—
(a)
does not have actual knowledge that the data message or an activity relating to
the data message is infringing the rights of that person;
(b)
is not aware of facts or circumstances from which the infringing activity or the
infringing nature of the data message is apparent;
(c)
does not receive a financial benefit directly attributable to the infringing
activity; and
(d)
removes, or disables access to, the reference or link to the data message or
activity within a reasonable time after being informed that the data message or
the activity relating to such data message, infringes the rights of a person.
The
United States Senate passed the Dot Kids Implementation and Enforcement Act of
2002 (HR 3833), which establishes an Internet domain (.kids.us) as a
kids-friendly area on the World Wide Web. Hyperlinks to websites outside the
kids area will be prohibited. In December President George W. Bush signed into
law the .kids bill.
December 5, 2002:
US-Präsident
unterzeichnet Gesetz für Kinder-Domain, Heise:
"Mit dem gestern von US-Präsident George W. Bush unterzeichneten "Dot Kids Implementation and Efficiency Act of 2002" hat die US-Regierung die organisatorischen Bedingungen für eine "kindgerechte" Internet-Domain geschaffen."
December 5, 2002: Rötzer, Florian,
Virtueller
Grünlichtbezirk für Kinder, Telepolis:
"Präsident Bush unterzeichnet das Gesetz zur Schaffung einer geschützten und sauberen kid.us-Domain."
November 16, 2002: Rötzer, Florian, Ein
abgeschlossener Kinderspielplatz im Internet, Telepolis:
"Ein nun dem US-Präsidenten vorliegendes Gesetz will eine kontrollierte kid.us-Domain einführen, um den Kindern (und Eltern) einen sicheren und sauberen Ort zur Verfügung zu stellen."
November
15, 2002: AP, Kids
Get Safe Internet Haven, Wired:
"Congress approved legislation Friday to create a safe haven on the Internet for children, where parents can be assured websites are free of pornography and other material not suitable for
youngsters."
Update
January 2004:
Is there
a legal difference between a hyperlink and a URL?
In
2002 The United States Senate passed the Dot Kids Implementation and Enforcement
Act of 2002 (HR 3833), which established an Internet domain (.kids.us) as a
kids-friendly area on the World Wide Web. NeuStar, Inc., has been appointed to be the administrator of the
kids.us domain name space by the DoC to operate a shared registrations system, domain
name servers, and other
equipment for the kids.us second-level domain (For more information see the Laws
and Regulations section).
Because there is no foolproof method for protecting children online at this
time, the kids.us Act specifies limitations put on specific technologies
commonly used on the Internet today. Hyperlinks that take a user outside of the kids.us
domain are prohibited from use
in any kids.us domain.
The website http://www.minnesota.kids.us/
lists several attractions in Minnesota that might be of interest for kids, e.g.
museums. If a museum has a website, the site is mentioned, but no link is
provided (e.g. Bakken Library and Museum: You have
probably seen a movie in which Dr. Frankenstein catches lightning to shock a
body to life. However, what happens with electricity and magnetism and the human
body in real life? The answers may shock you! Lots of people have
little machines in them that use electricity to help their hearts beat better.
Find out all about electricity, magnetism, medicine, and history at the Bakken
Library and Museum.... Check out at their website or
give them a call at 612-926-3878 for more information.)
Two other websites seem
to have found a way around the restriction not to hyperlink. Instead of
providing hyperlinks they merely provide the URL. See http://www.smithsonian.kids.us/president/gallery/links.cfm
(e.g. The American Presidency - http://americanhistory.si.edu/presidency/index.html) and
http://www.firstgov.kids.us/kus_history.htm
(America's Story (http://www.americaslibrary.gov/cgi-bin/page.cgi) - Discover the stories of
America's past.Jump back in time, meet amazing Americans, explore the states and
more.)
Are these two websites
in contradiction to the no hyperlinks regulation? Well, a "hyperlink" is generally a word or a picture that can be
activated by a click of the mouse to transport the user to another website. That
is not the case here, but there is no great difference between a URL and a
hyperlink. There is no reason to believe kids wont be able to reach the websites
mentioned even if there is no hyperlink. Copy and Paste and the job is done.
Sure, the mentioned websites outside the .kids.us domain probably wont be
harmful to minors, but where is the sense in prohibiting hyperlinks when you
allow the posting of URL's? We already have several software programs that
recognize a URL and automatically convert it into a hyperlink (e.g. Word or
Front Page). Are there already browsers out there that can do the same
job?
Can there be another
legal approach to a hyperlink than to a URL? I don't think so. The legislator
didn't want kids to find an easy way to a website outside the kids.us. domain. So
hyperlinks were not allowed. On the one hand the idea of creating a safe haven
for kids on the internet would already be at its end, if the law is not construed in a way that it also
prohibits the posting of URL's. On the other hand there are serious concerns
that a wide interpretation of the law could violate the First Amendment. NeuStar,
Inc. did not answer an e-mail asking for their point of view on the topic.
Several other websites
also prohibit their users from posting hyperlinks, especially dating and auction
sites. eBay.de
e.g. prohibits links to websites outside the ebay-Domain. Their
terms of use expressly state that URL adresses count as links.
eBay
ended some auctions because they contained links to the BidRobot website.
EBay’s Links policy prohibits the inclusion of third-party hyperlinks with
some exceptions.
In
2001, eBay implemented a linking policy to keep sellers from linking from the
auction description to a website where they could sell an item directly without
waiting for the auction to end.
June
7, 2001: Steiner, Ina, eBay
Adresses ReturnBuy Policy Violations, Auctionbytes-NewsFlash:
"In a previous NewsFlash, AuctionBytes reported that ReturnBuy was in violation of eBay's links policy and failed to maintain the required positive feedback ratio of 98% to retain Power Seller
status."
EBay’s
link policy:
"The eBay item page can only be used to describe, promote and facilitate the sale
of the listed eBay item - it cannot refer to or promote the seller's individual
web site, off eBay sales or other businesses. The eBay About Me page is a place
where the seller can promote their individual web site or business…."
November 9, 2002: Scheeres, Julia, Europeans
Outlaw Net Hate Speech, Wired:
"The Council of Europe has adopted a measure that would criminalize Internet hate speech, including hyperlinks to pages that contain offensive
content."
Additional Protocol to the Convention on Cybercrime concerning the
Criminalisation of Acts of a racist and xenophobic nature committed through
computer systems, Text
Article 3 – Dissemination of racist and xenophobic material through
computer systems
1. Each Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences under its domestic law, when
committed intentionally and without right, the following conduct:
distributing, or otherwise making available, racist and xenophobic
material to the public through a computer system.
Explanatory Report Nr. 28.
“Distribution” refers to the active dissemination of racist and
xenophobic material, as defined in Article 2 of the Protocol, to others, while
“making available” refers to the placing on line of racist and xenophobic
material for the use of others. This term also intends to cover the creation or
compilation of hyperlinks in order to facilitate access to such material.
1. Los prestadores de servicios de la sociedad de la información que faciliten
enlaces a otros contenidos o incluyan en los suyos directorios o instrumentos de
búsqueda de contenidos no serán responsables por la información a la que
dirijan a los destinatarios de sus servicios, siempre que:
a) No tengan conocimiento efectivo de que la actividad o la información a la
que remiten o recomiendan es ilícita o de que lesiona bienes o derechos de un
tercero susceptibles de indemnización, o
b) si lo tienen, actúen con diligencia para suprimir o inutilizar el enlace
correspondiente.
Se entenderá que el prestador de servicios tiene
el conocimiento efectivo a que se refiere la letra a) cuando un órgano
competente haya declarado la ilicitud de los datos, ordenado su retirada o que
se imposibilite el acceso a los mismos, o se hubiera declarado la existencia de
la lesión, y el prestador conociera la correspondiente resolución, sin
perjuicio de los procedimientos de detección y retirada de contenidos que los
prestadores apliquen en virtud de acuerdos voluntarios y de otros medios de
conocimiento efectivo que pudieran establecerse.
2. La exención de responsabilidad establecida en el apartado primero no operará
en el supuesto de que el destinatario del servicio actúe bajo la dirección,
autoridad o control del prestador que facilite la localización de esos
contenidos.
The E-Commerce
Directive does not specifically deal with the liability for providers of
hyperlinks. But according to Article 21 of the Directive, the Commission
shall submit to the European Parliament, the Council and the Economic and Social
Committee a report on the application of this Directive before 17 July 2003, and
thereafter every two years. In examining the need for an adaptation of this
Directive, the report shall in particular analyse the need for proposals
concerning the liability of providers of hyperlinks and location tool services,
"notice and take down" procedures and the attribution of liability
following the taking down of content.
The first report on the
application of the E-Commerce directive adresses the issue of liability for
hyperlinks. The report states:
In addition to
the matters dealt with by Articles 12-14, some Member States 68 decided to
provide for limitations on the liability of providers of hyperlinks and search
engines.69 This was motivated by the wish to create incentives for investment
and innovation and enhance the development of e-commerce by providing additional
legal clarity for service providers. Whilst it was not considered necessary to
cover hyperlinks and search engines in the Directive, the Commission has
encouraged Member States to further develop legal security for internet
in-termediaries. It is encouraging that recent case-law in the Member States
recognizes the importance of linking and search engines to the functioning of
the internet. In general, this case-law appears to be in line with the Internal
Market objective to ensure the provision of basic intermediary services, which
promotes the development of the internet and e-commerce. Consequently, this
case-law does not appear to give rise to any Internal Market concerns 70 .
In a few cases 71
national courts have already interpreted the Directive. However, in these cases,
the national implementing measures of the Directive had not yet been adopted in
the States concerned.
There is still
very little practical experience on the application of Articles 12-14, but the
feedback received so far from the Member States and interested parties has, in
general, been positive. The approach taken in the Directive appears to have wide
reaching support among stakeholders. In any case the Commission will, in
accordance with Article 21, continue to monitor and rigorously analyse any new
developments, including national legislation, case-law and administrative
practices related to intermediary liability and will examine any future need to
adapt the present framework in the light of these developments, for instance the
need of additional limitations on liability for other activities such as the
provision of hyperlinks and search engines.72
68 Spain, Austria and EEA-State Liechtenstein and
Portugal in its draft law.
69 Spain and Portugal have opted for the model of
Article 14 both for search engines and hyperlinks, whereas Austria and
Liechtenstein have opted for the model of Article 12 for search engines and of
Article 14 for hyperlinks.
70 For example in France TGI Paris, référé, 12
mai 2003, Lorie c/M. G.S. et SA Wanadoo Portails, in Germany in the case
Verlagsgruppe Handeslblatt v. Paperboy, aus dem Bundesgerichtshof (BGH), Urteil
vom 17. Juli 2003 – I ZR 259/00.
71 Cases Deutsche Bahn v. XS4ALL, judgement by
Gerechtshof te Amsterdam (Court of Appeals), 762/02 SKG, of 7.11.2002, and
Deutsche Bahn v. Indymedia, judgement by Rechtbank Amsterdam (District Court),
KG 02/1073, of 20.6.2002, in the Netherlands (judgements available at http://www.rechtspraak.nl);
and Case Public Prosecutor v. Tele2 in the EEA-country Norway, judgement by
Borgarting Lagmannsrett (Court of Appeals), 02-02539 M/01, of 27.6.2003. Tele2
was acquitted when the public prosecutor dropped charges against it.
72 The approach of the Member States who opted to
legislate on the hyperlinks and search engines does not seem to give rise to a
risk of fragmentation of the Internal Market. The Commission is, however,
actively following work in Member States relating to liability issues such as
the fundamental work carried out by "Le Forum des droits sur l'Internet"
in France, which has published recommendations on hyperlinks called "Hyperliens:
Statut Juridique", published 3.3.2003, and "Quelle responsabilité
pour les créateurs d'hyperliens vers des contenus illicites, published
23.10.2003, both available at http://www.foruminternet.org/recommandations/.
Footnote 70 mentiones a
verdict in the dispute between Handelsblatt and Paperboy. This case was not
about liability for linking to illegal material. The case was about legality
of deep linking in Germany.
In the USA,
South
Africa, Austria
and Spain
the liability for linking to illegal material is regulated by law
E-Commerce
Directive = Directive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of information society services,
in particular electronic commerce, in the Internal Market ('Directive on
electronic commerce')
First
Report on the application of Directive 2000/31/EC of the European Parliament
and of the Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the Internal
Market (Directive on electronic commerce); Brussels, 21.11.2003; COM(2003) 702 final
Erster
Bericht über die Anwendung der Richtlinie 2000/31/EG des Europäischen Parlaments und des Rates vom 8. Juni 2000
über bestimmte rechtliche Aspekte der Dienste
der Informationsgesellschaft, insbesondere des elektronischen Geschäftsverkehrs,
im Binnenmarkt (Richtlinie über
den elektronischen Geschäftsverkehr)
The European Parliament Sept. 7
called for action to protect children from inappropriate content on the
Internet. In adopting a report from Marielle De Sarnez
on the protection of minors and human dignity, the Parliament inter alia made
the (non-binding) recommendation to oblige search engines to post warning
banners drawing attention to possible dangers and to the availability of
telephone hotlines.
Member States are to submit a report to the
Commission on measures taken in application of this Recommendation two years
after its adoption. By 31 December 2008, on the basis of the reports submitted
by the Member States, the Commission will submit to the European Parliament a
report on the implementation and effectiveness of the measures laid down in this
recommendation, identifying any additional measures which may be necessary,
including binding legislation at European level.
A visitor from Colombia sent me
a comment from the National Copyright Office which deals with hyperlinks. Due to
my lack of the Spanish language and the inefficiency of automated translation
programs, I did not understand very much of it. As far as I can tell, the
Colombian Law gives an author the exclusive right to make his work available
online. In the opinion of the Copyright Office, hyperlinks can violate that
right. This is contrary to what most courts have decided on this topic worldwide.
If you are interested in the comment, don't hesitate to contact me and I will
e-mail it to you. The essential part of it could be the following:
"Como se puede observar, en uno u otro caso, el
hipervínculo permite interconectar diversos sitios en la web, con lo cual, es
fundamental entender que un link no es, simplemente, una nota de pie de página
que pretende facilitarle al lector información adicional del tema que se
encuentra en otro sitio. (...) tiene un elemento de contenido. Su elemento
operativo radica en el código fuente que instruye al browser para que muestre un
contenido que se encuentra en otra página de internet. Su elemento de contenido
se constituye en el material al cual se dirige
El
anterior análisis nos permite identificar, que si con estos hipervínculos se
enlazan contenidos protegidos por el derecho de autor, será necesario entonces,
contar con la autorización del autor o del titular del derecho.
En este
sentido, el artículo 8 del Tratado de la OMPI sobre Derecho de Autor, establece
a favor de los autores de obras literarias y artísticas el derecho exclusivo de
autorizar la puesta a disposición del público de sus obras, a través de medios
alámbricos o inalámbricos, que permita a los miembros del público acceder a
estas obras desde el lugar y en el momento que cada uno de ellos elija.
Retomando precisiones anteriormente hechas de
carácter técnico, en el momento de tener almacenados contenidos (hipertextos) y
permitir, por medio de hipervínculos, el acceso a contenidos protegidos por el
derecho de autor, se debe contar con la autorización previa y expresa de los
titulares de los derechos patrimoniales de tales obras, por darse otro acto de
comunicación pública en el entorno digital, como es la puesta a disposición del
público que atiende al principio general del derecho exclusivo de orden
patrimonial que tiene el titular de realizar, autorizar o prohibir cualquier
clase de uso respecto de su creación."
Google has warned that proposed
changes to Australia's copyright laws could open the way for copyright owners to
take legal action against search engines for caching and archiving and thus
drive the country back to "the pre-Internet era". "Given the vast size of the
Internet, it is impossible for a search engine to contact personally each owner
of a web page to determine whether the owner desires its web page to be searched,
indexed or cached," Google said. "If such advanced permission was required, the
internet would promplty grind to a halt."
November 7, 2006:
New Australian copyright rules 'restrictive': Google,
Sydney Morning Herald:
"Internet search engine Google has asked for more
flexibility in new federal copyright laws, warning
Australian businesses could be held back because the
new rules are too restrictive."
There have been a
lot of lawsuits concerning
linking, framing and search
engine issues in the last years.
In this section you'll find
short introductions into the
different cases and links to
news articles about it.
