BY EVAN HENSLEIGH

In print | Published November 6, 2003

It’s interesting to find out what you’re not allowed to see when you really look. As the music industry churns across the Web to knock out illegal file traders, they’ve been forced to take the battle far and wide — and Down Under.

“Electronic Frontiers Australia (http://www.efa.org.au) claims that the raids organ-ized by the music industry on mp3s4free.net have come up with nothing. Only links to other sites and not copyrighted material have been found. The music industry is now saying that just linking is in itself illegal,” reports Slashdot (Oct. 28).

Yes, that’s right. It’s now illegal to link to a site that’s in violation of copyright law. (One wonders what the legal antics the music industry has in store for Google.) The argument, I suspect, is based on a hyperlink on a Web page falling under the Digital Millennium Copyright Act’s provision against providing “unauthorized access” to a copyrighted work — a highly tenuous accusation at best. (This is roughly akin to accusing someone of accomplice to bank robbery because the thief stopped her on the street to ask for directions). Of course, it’s also the policy our own school is using in the Diebold case: If you link to the Why War? site to draw attention to the memos, the college will theoretically pull the plug on your site, which is something we ought specifically to be advising the administration to reconsider.

Of course, what is most puzzling about the music industry’s claim against mp3s4free.net is that, while the linking is arguably illegal in the United States, it’s not against Australian law under any interpretation. Given the internationality of the Internet, how much can digital copyright laws remain a national concern? Perhaps the most pressing front of this issue is that Google — an American company, subject to American laws — has agreed to remove any site in violation of the DMCA.

Unfortunately, while Google is an American company, it’s not an American service but the Web’s search engine. A site in Australia that violates American copyright law might still be yanked from the Google listings, and in today’s world, that can virtually kill the page.

The censorship battle goes beyond the DMCA, of course. Symantec, a frequent proponent of censorship, is advocating expanding the law to prohibit transmission of information and tools that could potentially be used by hackers — regardless of whether or not they could be used for other, legitimate purposes, like improving server security against hackers. Meanwhile, its recent Internet security suite, among other things, includes parental controls to filter out Web sites “unsuitable” for children. The software cuts off access to nearly all pro-gun sites (under the category of “weapons”) while not touching anti-gun sites — and this sort of software is required by law for libraries and schools.

In a global world, on a global Internet, copyright laws are necessarily vague and indistinct. Until an international policy on digital copyright is reached, it’s unlikely that we’ll have a solution that works at all, as the DMCA currently does not. In the meantime, the United States is fighting a losing battle; more importantly, it is fighting a battle it should never have taken up.

This leaves us with an important question, though: How do we protect copyrights without promoting censorship? For all that people attack copyright law, it is undeniably necessary, and it is used legitimately to protect against plagiarism and theft as well as illegitimately to prevent free speech.

What needs to be done is a general rollback of some current copyright provisions. The use of forced cease-and-desist orders should be restricted to commercial violations only — that is, if the violation of copyright does not directly effect the profits derived from that work, immediate cease and desist cannot be filed. Sharing a CD’s worth of music on the Internet, yes; sharing internal company memos, no. No one made money off the memos. In addition, it should be made clear that linking to a copyright violation is not a copyright violation. Finally, legitimate use should gain priority. If information can be used to aid in breaking copyright law (by hackers) or in helping other people (in server design), this is not illegal.

Are these changes we’re likely to see soon? No. But that is no reason not to work toward them.

Evan Hensleigh is a senior. You can contact him at ehensle1@swarthmore.edu.

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