[FYI] (Fwd) FC: Microsoft and other linking bans put journalists at risk

["Axel H Horns" <horns@t-online.de>]

------- Forwarded message follows -------
Date sent:      	Sat, 13 May 2000 03:21:20 -0400
To:             	politech@vorlon.mit.edu
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Microsoft and other linking bans put journalists at risk
Copies to:      	mmurray@microsoft.com, jkweston@microsoft.com, malda@slashdot.org
Send reply to:  	declan@well.com

Microsoft is demanding that Slashdot remove certain posts and *links*
to certain sites, including, apparently, areas of microsoft.com. The
lawyergram from Microsoft said:

http://slashdot.org/article.pl?sid=00/05/11/0153247&mode=thread
>"Included on http://www.slashdot.org are comments that now appear in
>your  Archives, which include unauthorized reproductions of
>Microsoft's copyrighted work... In addition, some comments include
>links to unauthorized reproductions of the Specification, and some
>comments contain instructions on how to circumvent the End User
>License Agreement."

Microsoft claims such links are illegal under the Digital Millennium
Copyright Act. This creates a problem for journalists, who generally
like to provide links to ongoing controversies without spending an
inordinate amount of time in prison.

Note Microsoft also wants to censor *discussions* of how to bypass the
license agreement, which might also reasonably appear in a news
article, but for now let's just focus on linking.

Can I include links to offending sites in my articles? This is not an
academic question. I covered the /. controversy yesterday, which
involves allegations of Microsoft perverting open standards for its
own gain, at: http://www.wired.com/news/politics/0,1283,36282,00.html

For instance, am I permitted to link to this copy of the supposedly
"secret" source code without risking a lawsuit?
http://nofuncharlie.com/archive/microkerb.txt

Journalists in the past haven't worried about copyright law much at
all; if anything, we've instinctively supported it. Copyright law
helps us to get paid for what we do for a living.

But nowadays intellectual property rights may have gone too far -- and
are interfering with free speech rights that are traditionally
protected by the First Amendment. If a web site somewhere on the
Internet is violating Microsoft's copyright, let Bill Gates' team of
natty attorneys sue to take it offline. But don't sue me and order me
not to link to something that my readers want to know about.

It's no accident that Microsoft and Microsoft-funded trade
associations lobbied Congress to pass the Digital Millennium Copyright
Act in the first place.

This isn't even the only case involving journalists and linking:

* I received a copy of a temporary restraining order and a subpoena
for linking to a copy of a program that revealed Cyberpatrol's secret
blacklist: http://www.politechbot.com/p-01022.html

* A bill before the House Judiciary committee would make it a crime in
some cases for anyone, including journalists, to link to drug-related
web sites: http://www.wired.com/news/politics/0,1283,36209,00.html

* The motion picture industry has asked a federal judge to order 2600
Magazine to delete links to a program that decrypts DVDs:
http://www.wired.com/news/politics/0,1283,35394,00.html 2600's
attorney correctly pointed out that other news sites such as Wired
link to the same program and would be at risk:
http://www.wired.com/news/business/0,1367,36131,00.html I linked to
the DeCSS utility in a number of my articles, as did other reporters.

Last year, I warned that "journalists should pay attention" because
news sites could be sued in linking cases:
http://www.politechbot.com/p-00814.html Now that Microsoft has upped
the ante by taking on Slashdot -- a new form of community journalism
that just won a people's choice Webby Award -- that outcome seems even
more likely.

I'm copying two Microsoft representatives. Perhaps they can assure me
for the record that my fears are unfounded.

-Declan

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