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Should news publishers be sued for linking to copyrighted material?

When Gawker shared a link to Tarantino’s ‘Hateful Eight’ script, he decided to sue the news publisher for a reported $1 million but the lawsuit was subsequently thrown out for not being specific enough about the infringement.

What makes this particular incident noteworthy is that Gawker released a news article that showed people where they could download the leaked script that Tarantino had written, but didn’t host or have anything to do with uploading it.

The script file on the third party website was taken down but Gawker still linked to it along with another website, Badass Digest, that had the link to part of the script.

While there is no excuse for blatantly stealing work and making money off it, can a news publisher, journalist or blogger really be held responsible for the damages that would occur from sharing a link to material elsewhere on the web?

If we take the Gawker example at face value, the link re-directed visitors to an anonymous website where the file was hosted, which now gives a 404 error. There is no way for us to determine who downloaded the script, what kind of traffic volume of people went to see it nor whether the leaked script was actually ever hosted there.

The only way to get this information would be to get a court order that requires Gawker to provide web traffic data, showing which visitors went onto that page in the first place, which IP addresses clicked on the link and then to ascertain which of those individuals downloaded the script and whether it was distributed further or sold at the expense of the copyright owner.

This would then require a separate court order to the 3rd party website hosting the material, to force them to release the data about traffic on that page, which IP addresses downloaded the material, and whether the material was that of Tarantino’s script or not. On top of that there would be the issue of privacy, personally identifiable information, the DMCA, the fair use provisions, and 1st amendment (for U.S hosted material) that protects the freedom of speech along with a host of other laws.

That data would also contain IP addresses and information of web users in other countries which would be governed by legislation outside of the U.S.

Even to have that data accessed technically requires the compliance of multiple countries with separate court orders from what I understand.

The problem with this particular lawsuit is that, if successful it would break the fundamentals of the web because websites cannot exist without creating links and there is no international legislation that deals with this context that I know of. It is a grey area that needs to be looked at to ensure people’s information is protected, copyright owners are protected, and freedom of speech is upheld.

While I totally sympathize with Tarantino’s desire to prevent people from making money off his stolen work, I don’t see how a news publisher can be held accountable for damages in this context when the content is merely a gateway to information, as much as Google search is a gateway to all pages on the web.

Clearly this side of copyright law needs an upgrade however to get more perspective on this, the EU recently made a landmark ruling that stated how hyperlinking “does not infringe copyright.”

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