Can you go to jail for link aggregation?

Brian McCarthy has been arrested for link aggregation.

"This domain name has been seized by U.S. Immigration and Customs Enforcement, Special Agent in Charge New York Office in accordance with a seizure warrant obtained by the United States Attorney's Office for the Southern District of New York. / It is unlawful to reproduce or distribute copyrighted material, such as movies, music, software or games, without authorization."

If you saw the text above on a Web site, replete with the seals of the Department of Justice, the National Intellectual Property Rights Coordination Center, and Homeland Security Investigations, you'd most likely think the domain belonged to some really bad people.

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What could the owner have done to get their site shuttered like that? Maybe serve as an archive for the illegal distribution of box office movies? An illegal repository for commercial music? Distributing "cracked" commercial software?

In the case of Channelsurfing.net and Brian McCarthy, the owner of the site, the problem was none of those things. His site was shut down and Mr. McCarthy was arrested last week and charged with criminal copyright infringement, a crime that carries a punishment of five years in prison.

It turns out McCarthy was running a link aggregation service that pointed to other Web sites where streaming TV shows and sportscasts, many of them illegal, could be found. Moreover, when you clicked on a link on Channelsurfing, the target URL was opened in a new window and the illegal material was displayed with a surrounding banner that showed advertisements.

It is alleged in the complaint (you can view this at the bottom of this page) that McCarthy profited from this technique to the tune of some $90,000 since 2005.

Channelsurfing wasn't storing any purloined content, McCarthy wasn't responsible for the content being acquired and distributed by the sites his site linked to, and he wasn't an owner of those sites, yet what the complaint cites as the offense is specifically the distribution of copyrighted material and that isn't actually what McCarthy did; he merely published a load of links to content that he put a frame around while the actual delivery was done by the linked-to sites.

This may seem a fine distinction but it's an important one because the complaint is based on the fact that Channelsurfing was guilty of link aggregation which, as far as I know, isn't illegal. Indeed, if it was an offense then anyone sending a link to any kind of copyrighted material in an e-mail message or on a blog would be also have to be guilty.

Actually, consider this: Google, Bing, Yahoo and every other search engine has to be hugely liable to similar prosecution because they are all major link aggregators and many of those links will, unintentionally, be to copyrighted material!

There's a significant campaign from the likes of Demand Progress to petition Janet Napolitano, the director of Homeland Security, and John Morton, director of Immigration and Customs Enforcement (the agencies involved in the prosecution), to rethink the position of their departments and we really should support the petition. But this support shouldn't be seen as McCarthy being innocent.

Nope, McCarthy hasn't played fair and he really should be punished, but if the charge as stated is what he is found guilty of, it will put all of us at risk of prosecution should any company decided it dislikes our Web site for pointing to a URL it believes infringes their rights.

Gibbs keeps his head down in his bunker in Ventura, Calif. Send your field reports to backspin@gibbs.com.

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