Politech: FC: Microsoft and other linking bans put journalists at risk

[Declan McCullagh <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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