Salon: Can hyperlinks be outlawed?

“In a fresh attack on DeCSS, a program that decrypts DVDs so
people can play them on Linux-based operating systems, the Motion
Picture Association of America filed a motion on Wednesday to
prohibit 2600, the “hacker quarterly,” from linking to other sites
that post copies of the outlawed program. Specifically, says Mark
Litvack, the MPAA’s vice president and director of legal affairs
for worldwide anti-piracy, the organization representing movie
studios wants Eric Corley — aka Emmanuel Goldstein, publisher of
2600 — to quit “trafficking” in the distribution of DeCSS.”

“In January, a federal judge prohibited 2600 and two other sites
from posting DeCSS. (The judge had ruled that DeCSS was a violation
of the 1998 Digital Millennium Copyright Act, which considers
anything that subverts “access control mechanisms” to digital
content to be illegal — regardless of whether the modifications to
the mechanism are used to access the content or to copy it.)
Now the MPAA is trying to keep 2600 from even linking to other
sites that have posted the program.

“But wait. Can hyperlinks be outlawed? Only last week, a
California judge ruled, in a case brought by Ticketmaster against
Tickets.com, that it’s not illegal for one site to link to another.
Among other things, that suit concerned “deep linking.”
Ticketmaster alleged that by bypassing its home page and linking
directly to “inside” pages, Tickets.com violated its copyright. The
judge, however, held that “hyperlinking does not in itself involve
a violation of the Copyright Act.”