The small body of law pertaining to hyperlinks grew a little last week with a military appellate court's decision that the act of distributing a hyperlink to an online source of child pornography did not subject the defendant to criminal liability for distributing the child pornography available at that address.
The court's decision was interesting for its discussion of the differences between transmitting a computer file and transmitting a pointer to that file's location, and whether different legal consequences should attach to these scenarios. Hyperlinks are valuable currency on the Web 2.0 Internet. I came away from this case with the sense that the criminal code, at least some portions of it, has yet to recognize this fact.
The decision was a close one, a 3-2 vote, where the majority based its ruling on the plain language of the statute. Child pornography is a visual depiction of a minor engaging in sexually explicit conduct. A "visual depiction," as defined by 18 U.S.C. 2256(5), "includes ... data stored on a computer disk or by electronic means which is capable of conversion into a visual image[.]"
The defendant was alleged to have transmitted to an undercover law enforcement agent a hyperlink pointing to a Yahoo! Briefcase server containing images of child pornography. The court rejected the government's argument that a hyperlink to child pornography meets the statutory definition of a "visual depiction" of child pornography. "The data contained in a hyperlink is not capable of conversion into any type of visual image," it said. The court said that a hyperlink was a shortcut to a particular location on the Internet--not child pornography itself or data capable of conversion into child pornography.
Two dissenters argued that there is little difference--a few extra mouseclicks, at most--between the distribution of a hyperlink to child pornography and distribution of the child pornography itself. They relied on language in Universal City Studios Inc. v. Corley, No. 00-9185 (2d Cir., Nov. 28, 2001), a copyright infringement case, in which the Second Circuit found infringement liability because the hyperlinks published by the defendant had the "functional capacity" to deliver infringing content instantaneously to an Internet user's computer. Building on Corley, the dissenters would have affirmed the defendant's conviction. "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," they wrote.
The case is United States v. Navrestad, No. 07-0199 (C.A.A.F., May 14, 2008).
Comments