The DMCA, Copyright Law, and the Right to Link

Abstract

The Digital Millennium Copyright Act (DMCA) forbids circumventing technological measures that protect copyrighted material. It also prohibits making or tra[double dagger]cking anti-circumvention devices. Some see this law as a necessary protection for fragile digital content, while others regard it as a threat the future of free speech rights. The DMCA provides a springboard for considering this key issue: should web users have absolute freedom or should that right be abridged in some cases? Although some legal scholars embrace an unqualified right link, others have no problem with restrictions on hyperlinking as required by the DMCA. They contend that there should be some accountability when a user knowingly links infringing, defamatory, or other problematic material on the target site. We let these controversial positions polarize our analysis as we seek find a respectable middle ground.Linking greatly enhances the communicative power of the Web. No web site is truly complete without these cross-references other sites. It is even fair say that hyperlinking is changing our research and referencing methods. But will the DMCA and strict enforcement of copyright law chill linking activities? And what extent should hyperlinking activities fall under the protection of the First Amendment?We begin this analysis by reviewing the technical aspects of linking. Is a hyperlink a functional piece of computer code, speech, or some sort of hybrid? We then explicitly consider limits on the right hyperlink by probing the relevant provisions of the DMCA and its apparent prohibition of links unlawful material. This leads into a discussion of the Universal City Studios v. Remeirdes case, the first major constitutional challenge the DMCA. In that case considerable attention was given the right as part of a larger right of free expression. Both the district court and the appeals court, however, concluded that the act of linking the decryption program called DeCSS violated the law. Both of these courts underscored the functional capability of linking, but erred by over-emphasizing the similarity between a hyperlink and a piece of computer source code.The decision in the DeCSS case was misguided, but an unqualified right engage in hyperlinking also goes too far. Hence we develop a normative framework that gives a presumption linking rights. This framework recognizes that linking is an important free speech activity but it also takes into account that there might be extreme cases where the stakes for free speech rights are low and linking should be disallowed.Technology of the HyperlinkWeb sites contain hypertext documents (or web pages) and each web site that exists on the World Wide Web has a unique address or URL (Universal Resource Locator) such as www.bc.edu. A hyperlink is a connection within the same web site di∂erent web pages or a connection between two di∂erent web sites. Links enable web users e∂ortlessly navigate their way from one web page another. When a user clicks on a hyperlink like the one above (for bc), the corresponding HTML code is activated instruct the user's browser locate and retrieve that web page.The hyperlink text itself can appear in many forms. It can be the name of the linked to web site or a description of what is be found at that web site (usually the name or description appears in highlighted HTML text). It can even take the form of a revealing graphic or such as a company logo. There are two basic types of links. An HREF instructs the browser locate another web site and provide its contents for the user by placing that web site's address in the location box. An IMG or image link instructs a browser display images or text from another web site without leaving the original site. In either case the text (or image) be viewed must be temporarily stored in the Random Access Memory (RAM) of the user's computer system. …