Cut &Pasted from the NYT December 10, 1999


By CARL S. KAPLAN

Copyright Decision Threatens Freedom to Link

In a ruling that could undermine the freedom to create links on
the Web, a federal judge in Utah has temporarily barred two
critics of the Mormon Church from posting on their Web site the
Internet addresses of other sites featuring pirated copies of a
Mormon text.

In issuing a preliminary injunction on Monday, Judge Tena Campbell
of the United States District Court in Salt Lake City said it was
likely that the critics, Sandra and Jerald Tanner, had engaged in
contributory copyright infringement when they posted the addresses
of three Web sites that they knew, or should have known, contained
the copies. The copyrighted material was the text of the Church
Handbook of Instructions, a limited-distribution book that enables
lay clergy to administer the affairs of the Church of Jesus Christ
of Latter-day Saints.

Lawyers for Intellectual Reserve Inc., a corporation that holds
the intellectual property assets of the Mormon Church, praised
Judge Campbell's decision. The temporary order will stay in effect
until the case is tried or settled.

"We are certainly pleased the court is upholding copyright law,"
said Berne S. Broadbent, copyright lawyer for IRI.

But other lawyers found the court's decision disturbing and, if it
stands, a possibly dangerous precedent that could inhibit one of
the most fundamental features of the Web -- the ability to direct
viewers from ne Web site to another. Although the Tanners' case
revolves around the posting of Internet addresses or URLs, and not
actual linking, the copyright issues are similar, lawyers said.

"If that decision ultimately holds up, then linking is definitely
dead," said Jeffrey R. Kuester, a copyright lawyer who practices
cyberspace law at Thomas, Kayden, Horstemeyer & Risley in Atlanta.
"If you can't post an address without running into copyright
infringement, how can you link?"

"The Web is all about links," Kuester said. "Without linking,
there is no Web."

The Tanners, a married couple who are long-time critics of the
Mormon Church, are founders of the Utah Lighthouse Ministry, which
operates a Web site with commentary about the Mormons and other
information.

In July, the Tanners posted on their Web site the tenth chapter of
the Church Handbook of Instructions, along with portions of two
other chapters -- a total of 17 pages of the 160-page book. Brian
M. Barnard, a lawyer for the Tanners, said in an interview that
the couple posted the excerpts in an effort to help people who had
inquired about Church activities. The Tanners received a copy of
the book in electronic form from an anonymous source, he said.

In October, the church, acting through its IRI arm, filed a
lawsuit against the Tanners in United States District Court for
the Central Division of Utah, claiming that the posting of the
book's 17 pages amounted to copyright infringement. Later, Judge
Campbell issued an initial, temporary restraining order banning
the direct posting of the book's contents.

In early November, according to legal papers, the Tanners posted
on their site an e-mail from a reader that said: "Church Handbook
of Instructions is back online!" The e-mail went on to list three
Internet addresses at which copies of the entire Handbook or
portions of it could be obtained.

Claiming that the Tanners were improperly pointing viewers to
sites that contained illegal copies of the handbook, lawyers for
the Mormon Church succeeded in getting Judge Campbell to issue an
expanded restraining order. This week, she also issued a formal
preliminary injunction, which prohibits the Tanners from directly
posting the contents of the handbook or posting on their site
"addresses to Web sites that defendants know, or have reason to
know, contain the material alleged to infringe plaintiff's
copyright."

In reaching her decision, Judge Campbell made two key conclusions.
First, she reasoned that anyone who went to a Web site and viewed
a pirated copy of the handbook was probably engaging in direct
copyright infringement, because that viewer's browser
automatically makes a local copy of the text.

In addition, Judge Campbell reckoned that by posting the addresses
to the pirate sites after they were ordered to take down the
handbook, and by otherwise assisting people who wished to locate
the pirate sites, the Tanners were liable under a theory of
contributory copyright infringement. By their actions, the Tanners
"actively encouraged" browsers to directly infringe the church's
copyright, Judge Campbell wrote.

What makes Judge Campbell's 10-page opinion significant, lawyers
said, is that there are few other instances where a court has
ruled on the practice of knowingly linking to or posting addresses
for sites with infringing material.

Sandra Tanner said she and her husband are considering an appeal
of Judge Campbell's order to the United States Court of Appeals
for the 10th Circuit. Otherwise, the case will proceed to trial.

"I don't believe it is illegal to tell someone where to go to read
the handbook," Tanner said.

Broadbent, the lawyer for IRI, claimed the court's order was a
straightforward application of the law of contributory
infringement. "We regard what the Tanners did as an end-run around
the initial order," he said.

Broadbent added that IRI recently contacted the operator of
Prestige Elite Communications in Australia, as well as half a
dozen other sites which, he claimed, had posted portions of the
handbook, requesting that they stop directly infringing church
copyrights. He said that with one exception, all the sites IRI
contacted have taken down the material. David Gerard, the operator
of the Prestige site, did not immediately respond to an e-mail
request for an interview.

Jessica Litman, a law professor at Wayne State University in
Detroit and an expert on intellectual property, said she believes
the court was wrong to issue a preliminary injunction.

Pointing out that there can be no contributory infringement
without direct infringement, she said it was clear to her that
when members of the public used the addresses provided by the
Tanners and visited a site to look at the handbook, any copies
their browsers made were permissible and protected by the concept
of fair use.

In any case, Litman asserted, the mere posting of a Web address
could not amount to actively encouraging someone else's
infringement. "If I give a footnote in a law review article for a
plagiarized book, that seems to be just telling people where the
book is, not materially facilitating their infringement," she
said. "This decision is like saying that providing footnotes to
illegal material is illegal."

The upshot, said Litman, is that the decision could discourage
people from giving addresses of Web sites or linking to them out
of concern for copyright liability.

Jessica R. Friedman, a copyright lawyer with Reboul, MacMurray,
Hewitt, Maynard & Kristol, a New York firm, said she also believed
that the court went too far in issuing a preliminary injunction.
But she said the case was a "close call" given the letter of
copyright law.

"It's not an unreasonable decision, but it is a little scary," she
said.

From CYBER LAW JOURNAL.