FITUG e.V. Förderverein Informationstechnik und Gesellschaft

FC: Microsoft and other linking bans put journalists at risk

------- 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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