Jessica Litman thinks that copyright law (specifically the Digital Millennium Copyright Act) is wrong when it treats hyperlinks differently than citations on a printed page. Here is what she said on the issue
Hyperlinks are merely coded instructions giving the location of files on the Internet. They make it easy for Web browsing software to find a site on Web in a way that’s analogous to the way footnotes make it easy to find a cited source, or driving instructions make it easy to find a street address . . .
Drawing a map showing where an infringing object may be found or dropping a footnote that cites it invades no province the copyright owner is entitled to protect even if the object is blatantly pirated from a copyrighted work. Posting a hypertext link should be no difference.
I’ve indirectly weighed in on the issue before. In that post, I advocated for the use of hyperlinks over stylized formal citations. The fact that I think hyperlinks are better than citations, by force of logic, means that I think the two entities are different from each other. Hyperlinks (when they work) lead one to the referenced materials, whereas citations simply alert one that the referenced materials exist. (The exception, of course, is when citations contain URLs, in which case, they’ve included hyperlinks.) Of course, readers can use information in the citations to find the cited materials (that’s why we have citations after all), but the needed effort is greater. The path is rockier; the destination is farther; the guide for getting there is worse. In contrast, hyperlinks are immediate; one click and the linked materials become available; hyperlinks are more powerful; they do more. And so they’re more liable to be be regulated by the law.
This is what is happening under the proposed PIPA and SOPA bills. Under the proposed legislation, hyperlinking to potentially copyright infringing materials constitutes infringement itself and subjects the sites providing the links to shut-downs. Citations, on the other hand, are presumably still safe. Perhaps the adage “it’s better to be hated than ignored” (by media companies, the major lobbyists and supporters for PIPA and SOPA) is serving as cold comfort to individual bloggers, technology companies hosting user-contributed content right, and search engines right now.
On a different note, I agree with Ms. Litman that the law treats physical copies of media (books, CDs, DVDs) very differently from their digital counterparts (e-books, iTunes songs, streaming videos). Moreover, it seems that those differences come at the expense of the consumers. For instance, consumers cannot lend their e-books as the First Sale Principle doesn’t apply to e-materials; they cannot make copies of iTunes songs for their personal use because the Audio Home Recording Act doesn’t apply; they cannot make certain legitimate-in-print uses of copyrighted e-materials because the doctrine of Fair Use doesn’t limit rules on anti-circumvention measures. How some of these distinctions in law are just and public welfare maximizing is a question the answer to which I’m still searching for.