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Scientologists' copyright suit shapes Net liability

By Dan Goodin, Staff Writer, CNET News.com
URL: http://www.news.com/News/Item/0,4,37622,00.html
June 9, 1999, 6:35 p.m. PT

Linking to a site that contains material that infringes someone's copyright also is an infringement, a Dutch court ruled today, according to the Church of Scientology, the plaintiff in the case.

The decision appears to be the first time a court has ruled on the legal status of hyperlinking and could expose Dutch and multinational Internet publishers to new liability for a practice that is rampant on the Internet.

The Church of Scientology, whose aggressive lawsuits policing its copyrights have helped forge new law on the Net, also got an order from the court requiring an Internet service provider to take down the infringing material.

The decision stems from a lawsuit the church filed against individuals who posted materials written by Scientology founder L. Ron Hubbard to a Web site in Holland. The individuals posted the copyrighted materials online after a court in the United States had fined a separate individual for making them available on the Web, the church said.

The County Court in the Hague ruled that the materials on the Dutch Web site also infringed the church's copyrights. But the court broke new ground when it ruled that hyperlinks to the materials also infringed the church's copyrights. Although only binding in Holland, the decision got the attention of attorneys who follow Internet law.

"It's hard for me to imagine how this holding can be correct," said Dan Burk, an associate professor of law at Seton Hall University, who noted that hyperlinks serve merely as footnotes or library call numbers that direct a computer to the source of information.

"I think it's pretty clear that just giving you a reference can't make me an infringer," he added.

But Eugene Volokh, a law professor at the University of California at Los Angeles, said that it is "not implausible" that a U.S. court could agree with today's decision under a theory known as "contributory infringement."

"The only requirements [for a showing of contributory infringement] are that you knew or should have known about the infringement and you materially contributed to the infringement," Volokh said. "This [decision] isn't some ridiculous thing that only a Dutch court could come up with."

Nonetheless, Volokh and Burk said the decision probably will only affect publishers in Holland and those from multinational companies that do business in that country.

This is not the first time hyperlinking has been challenged in court. TicketMaster in 1997 sued Microsoft's Sidewalk online city entertainment guide over the practice. And a host of news publishers, including the Washington Post and CNN, sued an online news directory for posting headlines along with a hyperlink. Both those cases settled before a court could issue a ruling.

Nor is it the first time the Church of Scientology has forged new law on the Internet. A lawsuit filed against Netcom and another Internet service provider helped lay the foundation for establishing when service providers are liable for the copyright infringement of their users. The church late last month also subpoenaed AT&T's WorldNet ISP to learn the identity of one of its subscribers. AT&T yesterday revealed the user's identity to the Church.

Defendants in the Dutch case were not immediately available to comment. The suit was believed to involve Karin Spaink, an Amsterdam free-speech advocate who recently mirrored a controversial antiabortion site shut down by a federal jury in Oregon.