Links to Illegal Material / Hyperlinks to Torrent-Files, MP3-Files and unauthorized Playmate Pictures etc. - Part 3

United States v. Navrestad

According to a military appellate court's decision in the USA, the act of distributing a hyperlink to an online source of child pornography does not subject the defendant to criminal liability for distributing the child pornography available at that web site.

P. Navrestad was charged under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with distributing and possessing child pornography in violation of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. §§ 2251-2260 (2000). He had send a hyperlink to a Yahoo! Briefcase during an Internet chat session. The linked to site contained child pornography images. 18 U.S.C. § 2256(8) defines child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . . of sexually explicit conduct, where . . . the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct." "Visual depiction” in turn, “includes . . . data stored on computer disk or by electronic means which is capable of conversion into a visual image.” 18 U.S.C. § 2256(5).

So the key question was whether a hyperlink contains “data stored . . . by electronic means which is capable of conversion into a visual image." The court stressed the fact that a hyperlink only provides the recipient with a path to another website. It does not contain data itself. So the court held that Navrestad did not distribute child pornography. But the decision was a close one, 3:2. In his dissenting opinion, judge Effron wrote: "The recipient’s ability to access and use images transmitted by hyperlink is functionally indistinguishable from the ability to access and use images transmitted as individually saved files."

United States v. Navrestad, No. 07-0199 (C.A.A.F., May 14, 2008).

Also see:

• Unlawful Content or Hyperlink to It: What's the Difference?, E-Commerce and Tech Law Blog

MPAA v. Film links sites

Torrent Search Engine Links

On Wednesday, 23 November 2005, Bram Cohen, the founder and chief executive of BitTorrent and Motion Picture Association of America Chairman Dan Glickman announced a collaboration with the goal of inhibiting film piracy.

BitTorrent is a peer-to-peer (P2P) file distribution application that can be used to distribute files without the permission of the copyright holder. Cohen said BitTorrent.com will remove all links to pirated content owned by MPAA companies from its search engine. "BitTorrent Inc. discourages the use of its technology for distributing films without a license to do so," Cohen said in a statement. "As such, we are pleased to work with the film industry to remove unauthorized content from bittorrent.com's search engine."

It is expected that the move will do little to actually reduce piracy, as the search engine on BitTorrent.com is just one of many that finds "torrents". Many other websites continue to refer visitors to movies, though the MPAA began suing some of them.

• November 24, 2005: Tanner, Ben, MPAA, Bit Torrent reach agreement, DMasia:
  "The Motion Picture Association of America (MPAA) announced yesterday that it has reached an agreement with Bram Cohen, the designer of peer-to-peer (P2P) software Bit Torrent, to remove links to video content owned by the seven member studios of the MPAA from Bittorrent.com."

• November 23, 2005: Jardin, Xeni, A Torrent or a Trickle?, Wired News:
   "It's all but certain the deal between the Motion Picture Association of America and BitTorrent creator Bram Cohen won't dent the file-swapping epidemic, let alone stop it."

• November 23, 2005: Smith, Tony, BitTorrent to block links to pirate flicks, The Register:
  "BitTorrent creator Bram Cohen has agreed to strip links to pirate movies out of his bittorrent.com search engine."

• November 23, 2005: Utter, David, BitTorrent And MPAA Find Common Ground, Webpronews:
  "The creator of the high-speed file sharing application has linked up with Hollywood studios in an effort to clamp down on movie piracy and promote a way for film distributors to get their wares to users online."

MPAA v. Torrent Sites

The Motion Picture Association of America and major film and TV studios filed suit February 23 against seven Web sites for copyright infringement. The suit alleges that defendants knowingly enable, encourage, induce and profit from massive online piracy by indexing so called eDonkey hash links, thus enabling users to locate and download infringing copies of Plaintiffs' copyrighted motion pictures and television shows for free and without authorization. By clicking on the file name, an illegal copy of the movie or television program is automatically copied to a user’s computer. Sites sued include Torrentspy.com, TorrentBox.com and Ed2k-it.com. It is the first time that the studios and the MPAA sue indexing Web sites in the US (we have seen similiar lawsuits in Germany; they were successfull!)

One complaint can be found at http://pub.bna.com/eclr/060037.pdf.