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    Captain Copyright and the Case of the Critical Link

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    Monday June 12, 2006
    Appeared in the Toronto Star on June 12, 2006 as Links to Friends, Foes Fair Game on the Internet

    The hyperlink is one of the Internet's most basic yet important features.  The debut of the World Wide Web more than a decade ago brought with it the ability to instantly move from one site to the next at the click of a computer mouse.  While most sites welcome links, a few do not.  What if a website does not want others to link to it?  Further, what if a website only wants supportive links, while maintaining the right to block critical links?

    Those questions have been the subject of intense discussion this month after Access Copyright, a leading Canadian copyright collective, unveiled a copyright education website called Captain Copyright.  The initiative faced vocal opposition as critics pointed to its one-sided presentation of copyright issues and the inclusion of lesson plans that ask grade one students to create their own copyright permission form or to envision whether their favourite song would exist in a world without copyright.

    Captain Copyright critics were also troubled by the terms and conditions on the site that seemingly sought to shield the superhero from criticism.  The site features a linking policy that stipulates that "permission to link is explicitly withheld from any web site the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright."

    After users objected to those terms, Access Copyright issued a revised policy that sought to justify its conditions by pointing to the need "to protect the moral rights associated with the site."  Moreover, the revised terms specifically withheld permission to link from sites "featuring pornographic, racist or homophobic content."

    Just days after the second linking policy appeared, the terms were changed yet again with the reference to moral rights removed.  The current policy provides that Access Copyright has the right to withhold permission to link from any site that in its opinion may be damaging to its reputation, particularly sites featuring the objectionable content described earlier.

    Notwithstanding the flurry of changes, it is doubtful that any version of the policy is actually enforceable.  First, it is by no means certain that the terms and conditions associated with the site constitute a binding contract.  All contracts require offer and acceptance - an offer from one party and the acceptance of the offer from the other.

    While the offer side of the equation in the form of terms and conditions is certainly present, acceptance of those terms is only inferred by use of the site.  In fact, the contract explicitly states that "your initial use and continued use of this Website indicates your acceptance of the Privacy Policy and Terms of Use."

    Given that few people typically read the terms and conditions and that users do not provide Access Copyright with a formal acceptance (for example, by clicking an "I agree" icon), enforcement of the entire contract is subject to challenge.

    Even if it could be enforced, the specific linking provisions are unlikely to withstand legal scrutiny.  Several courts in both Canada and the United States have addressed the legal issues associated with linking, with most concluding that links do not raise any copyright concerns.

    Aside from the fact that links are pervasive on the Internet - everyone from Google to a modest homepage rely on them - restrictions make little sense from a technological perspective.  A hyperlink is no more than an electronic citation.  The party establishing the link maintains no control over the display of the linked-to page nor its actual content.

    The world is filled with citations - phone directories tell us where to find service providers or retail stores, newspapers tells us where to find events of local interest, and card catalogues in libraries tell us where to find books of interest.  A hyperlink is no different as it simply tells Internet users where to find a particular piece of content.  

    In the case of Captain Copyright, it is irrelevant whether the citation comes from a critical blogger or a supportive school board (a number of boards, including the Halton District School Board, linked to the site only to remove their links once the controversy erupted).  Permission is not needed to link on the Internet and it cannot be denied in legal terms and conditions.  

    When Access Copyright chose to freely display its content on the World Wide Web, it surrendered the right to restrict who might link to the site or comment on it. That would be true of any organization, but the principle should resonate particularly strongly with Access Copyright, given that it is a copyright collective whose members rely upon freedom of speech for their livelihoods.  If Captain Copyright teaches us anything, it is that he should be powerful enough to withstand a little criticism.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.  He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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