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Comment by redthrowaway | Hacker News Reader

I wonder how this will impact on the legality of sites such as thepiratebay in Canada. The first quote,

"I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers."

would seem to suggest that merely hosting a torrent file, which is analogous in function to a hyperlink, cannot be seen as equivalent to hosting the material to which it grants access. While one of the judges said something to the effect of "intentions matter", there could be a fairly strong case here.

IANAL, don't go starting a torrent site in Canada on my advice, etc.

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A good friend of mine works for isohunt (Vancouver based torrent site), they're being sued in the US IIRC.

I wouldn't at all be surprised if the court finds a different approach for working with torrent sites, that court recently decided that those being questioned by police do not have the right to a lawyer. At least up in Canada we jump through all the hoops to strip people of their rights.

http://www.cbc.ca/news/canada/story/2010/10/08/supreme-court...

Well, that's terrifying.

Their excuse: "His access to legal advice would have mitigated the impact of the police’s relentless and skilful efforts to obtain a confession from him"

I wish people would stop doing these silly "IANAL" disclaimers in online (anonymous, no less) discussions.

Are you really afraid somebody's gonna go off and ruin their life because they based the legality of their business on a HN comment? And then turn around and sue Mr. 'redthrowaway'?

If so, ponder this statement: IAAL, go jump off a bridge.

(both statements just add to the noise and contribute nothing)

> I wish people would stop doing these silly "IANAL" disclaimers in online (anonymous, no less) discussions.

> Are you really afraid somebody's gonna go off and ruin their life because they based the legality of their business on a HN comment?

No, they're really afraid of being prosecuted for practicing law without a license.

I wonder how this will impact on the legality of sites such as thepiratebay in Canada.

It won't. There's two reasons for this: First, the SCC isn't bound by its previous decisions; constitutionally this is formalized as the "living tree doctrine" which states that the constitution can grow to take meanings never imagined by its authors or by earlier court rulings. Second, the current court is highly activist; I've heard several lawyers comment that it seems to start by deciding the outcome it wants and then work backwards to attempt to find a tenuous legal interpretation to justify it. I think it's very unlikely that the SCC would be inclined to twist the law for the benefit of thepiratebay.

(IANAL, these are my personal opinions, and I don't want to be sued by the Supreme Court for libel.)

Magnet links, you mean?

Not quite the same thing.

The ruling said that publishing a hyperlink wasn't the same as re-publishing the original article.

Making a torrent file available is providing a way to download the copyright offending file - that's a totally different charge.

Don't forget magnet links: http://news.softpedia.com/news/BitTorrent-Magnet-Links-Expla...

If I link to some copyrighted material am I not providing a way to download the copyrighted material?

But you have no control of the content provided by the party to which you link. Nobody can get the illegal content from you. They can only get it from the party you reference.

Recently some people in my home town started putting up flyers about known drug dealers and their addresses. Trying to bring attention to the problem and mobilize the neighbourhood. But these concerned citizens were effectively linking to known drug distribution locations. Were they guilty of drug distribution because somebody might use that information to buy illegal drugs?

Would it make a difference if they felt those dealers were a positive influence in the community and put up positive flyers with the addresses instead?

If you apply current legal precedents IRT torrents, then yes, they are guilt of drug distribution.

I think maybe you misunderstood my line of questioning, you proved my point exactly.

Not sure I proved your point unless it was that current legal precedents are ridiculous. It's ludicrous to think that posting someones street address would make you guilty of anything going on inside that house. Otherwise the publisher of the phone book is in a whole heap of trouble.

Google provides access to same, not even counting torrent search. "Providing a way to download" is a nebulous, slippery-slope distinction that covers just about everything to one degree or another, whereas "making available for download" (ie: hosting) is far more specific. It'll be interesting to see what definitions they come up with. Regardless, I don't see the courts being able to keep up with pirates without overstepping and making many innocuous things illegal.

The case was specifically about "was a link - a republishing of an article" not, was the thing linked to legal.

In this libel case publishing the article was the offence. So 'if' making a link was also publishing, then an article that only linked to the original that was a new offence.

It doesn't mean that you can put up a message saying "riot at the mall tonight" and then tweet a link to that claiming "you only sent a link" - it's still inciting a riot!

In other words making a link doesn't suddenly protect you from what was in linked to message - it just means that it isn't a new publication of the same message.

In practice it has big implications for both Google (who don't have to police the entire internet!) and for libel tourism - you can no longer pick a convenient jurisdiction to sue in based on somebody there only publishing a link

I don't think we're talking about the same thing. My question was whether or not, just as linking to a libelous post is not itself libel, linking to an infringing download would be similarly considered to not be infringement.

If the courts were consistent on this matter, then providing a magnet link to a torernt could arguably be seen as no different than providing a hyperlink to a libelous post. It is the poster/hoster, not the linker, who would be liable.

I think (IANAL) is that in libel publishing is the offence - so if you publish a copy of the libel you have committed the same offence - so "is a hyperlink publishing a copy?" is the question.

In a torrent the offence is something like "making available a copyright file for download" so the argument is that a torrent (which doesn't itself contain any of the copyright file) and a link to the torrent are equally "making available".

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