Feds Really Do Seem To Think That Linking To Infringing Content Can Be A Jailable Offense

from the are-they-serious? dept

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Last week we covered the somewhat surprising arrest of Brian McCarthy, the operator of Channelsurfing.net, on charges of criminal copyright infringement. As we noted at the time, this seemed like a pretty questionable charge. I could potentially see acharge against him using the court-created concept of "inducing" infringement (a concept that Congress rejected...), but there is no inducement standard ininfringement. It's possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard, and it's not clear that the feds have enough to make such a claim really stick. At the time, we didn't have the complaint, but the folks at DemandProgress have obtained a copy of the complaint , which we've also embedded below.There doesn't seem to be anything. In fact, the complaint against McCarthy seems to mostly be copied and pasted from the original affidavit used to seize Channelsurfing.net. As we pointed out at the time, that affidavit relies on the extremely questionable claim that merely linking to infringing content can represent criminal infringement. As Demand Progress notes, letting Homeland Security and the Justice Department claim that linking to or embedding content can be a criminal act should be horrifying to anyone who understands the very basics of how the internet works. Once again: they're not claiming that McCarthy made any copies. They're not claiming he distributed any copies. Section 106 of the Copyright Act covers the six exclusive rights that copyright is supposed to provide. I can't see how McCarthy violated any of these. He did not reproduce the works. He did not prepare derivative works. He did not distribute the works. He did not perform the works. He did not display the works. At best, I'm guessing people who don't actually understand the technical issues will try to claim he displayed the works. But that's technically incorrect. No where on his server did he have or display any of these works. Instead, he pointed people to where the works were available. Some of his users may have seen displays of the works, but those were from their own browsers calling to entirely separate servers for those works.So, as expected, the specific charges are incredibly questionable and seem to be based on a theory of copyright law that has been completely made up by Homeland Security and the Justice Department. That's kind of scary.Homeland Security and the Justice Department clearly have gone way overboard here. Beyond the basic questions about the domain seizures (due process and First Amendment), now there are additional questions about them simply making up what theycopyright law to say, rather than what it actually does say. And when that leads to a conclusion that linking can be a jailable offense, it's time for them to seriously rethink their actions.

Filed Under: brian mccarthy, copyright, homeland security, links