The right to hyperlink - in response to the Canadian decision
balkin.blogspot.com
balkin.blogspot.com
The whole crux of the Supreme Court of Canada's decision is that, when linking to something, you have no control over the content of the destination. So today it can be a nice picture of a kitten, and tomorrow someone can change it to something defamatory and illegal.
Or today its a link to a public domain song, and tomorrow someone replaces it with something copyrighted with the same URL. You can't control that.
Following your line of reasoning, we'd accept that building a website with the sole intention of linking to kiddie porn would be OK - because the author of those links has no control over what's on the other side.
As with most discussions like these, the trick is in how to draw the line, how to strike the balance.
The moment you bring child porn into it, then anyone who would "accept that building a website of the sole intention of linking to kiddie porn would be OK" is then labelled a sick, twisted individual for supporting such a thing. It's an argument designed to shut debate down before it even starts.
It's like Godwin's Law. Eventually someone mentions Hitler and that pretty much ends the discussion.
Tor also serves a particular goal that exposes itself to abuse, but should the project start discriminating on what content to allow based on that fact?
On the other hand, if someone did verify the illegal content, and posts links with the clear, sole intention of driving others towards the illegal activity - then what?
I don't think you can decouple the link entirely from intention - links are sometimes expressive, as this article points out.
Instead of just giving ultimate, endless rights to link to anything for any reason, we say: base case, free speech, link to anything. But if someone can prove your intentions were illegal (no easy task), you're not necessarily protected.
Intention is a tricky gray area, but this would be in sync with other free speech protections - e.g. someone can press charges for libel on things you publish, but the burden of proof is on them to show the statement was false, harmful, and was made with malicious intent.
While it's possible to make a directory that encourages illegal behavior, it's also possible to make a directory that sits idly by as a repository of factual information. Yes, the court should check for direct encouragement of illegal behavior. But I'm not comfortable letting the motivation in creating the site matter very much because it is so difficult to prove one way or the other.
In what way would this not just be a return to the status quo? Cue thousands of copyright lawyers getting right back in line to issue random lawsuits.
No, a blanket statement "linking is not illegal" is both constitutional, and will drastically reduce this drain on the efficiency of the courts.
Much like newspapers have the right to say whatever they want. Of course, there are limitations. People can sue the NY Times, but it's not easy - the burden of proof is on the people bringing the suit. The 'strict scrutiny' standard, as I understand it, would make it very difficult for someone to attack hyperlinking. It does, however, enable that discussion in the case of extreme situations.