Spain Recognizes That Deep Linking To Infringing Content Is Not Infringing
from the a-good-ruling dept
While other countries are still going back and forth on whether or not just linking to infringing content should be seen as infringing as well, an appeals court in Spain has upheld a lower court ruling that merely linking to infringing content is not infringing itself. This makes a lot of sense, as putting up links to content controlled by others should never be seen as a crime, especially when the linking party might not have any idea whether or not the linked content is infringing, and when that content could potentially change. Either way, this is a good ruling for various torrent tracker sites, since all they are doing is linking to content, rather than hosting any themselves.
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Filed Under: copyright, deep linking, infringement, liability, spain
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Due to the nature of it all, there will be cases where its hard to prove but there will be plenty where it will be completely plain that the link is to something that does.
The only parallel I can think of would be the real world where providing someone with the means to contact someone else to procure goods you knew to be stolen would be seen as failure to report a crime. Not sure is the US or Spain in this case has such a law but the UK does.
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I also have my doubts about the wisdom of giving platform providers complete legal immunity from the consequences of their services being used in the commission of an offence; it's not such a big deal for civil matters like file-sharing, but it sets a potentially dangerous precedent when it comes to honest-to-God felonies.
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No I see it more as being stopped on the street by some one needing directions to a gas station. You give them exact directions and an hour later you hear that the store you gave directions to was robbed. It could have been the guy that stopped you for directions.
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Re: Reporting
Well, aside from some narrow exceptions, there isn't any duty to report a crime. Child abuse is one of the only exceptions to this. But, for example, if you witness someone steal a car, you're under no legal obligation to report it.
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No wonder kids don't get the idea of social responsibility anymore...there is no such thing.
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I dunno . . .
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Re: I dunno . . .
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These cases have generally found liability based upon additional factors associated with other company actions beyond the mere existence of its search engine. For example, is the company responding in good faith to takedown notices? Is the company openly encouraging sharing of files it has notice comprise infringing material? Does the company act in some other overt manner that can reasonably be viewed as facilitating such sharing? Etc.
Company liability is generally predicated upon the totality of facts as contained in the evidentiary record, and not just the fact that a search engine is involved. A relatively good example of some of the salient facts bearing upon this analysis can be found in the Grokster decision by a unanimous US Supreme Court.
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Some context on all this
One of the reasons why deep linking in Spain is not considered a crime is because downloading/offering of copywrited materials (movies, music...)is legal as long is not done for profit.
This is a key point and this discussion. It doesn't matter what the law in US or UK says but in Spain you can fully pack your hardrives with copywritted materials and share it whit the rest of the country without commiting a crime.
Regards
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One may choose not give directions to someone if they said "I need to rob X Petrol station can you give me directions."
It is a murky area for sure but blanket protection is dangerous.
I did not realise that about Spain though Spanish User but am intregued as to how it works. Does it really mean there is no concept of ownership of any copyright so long as the person sharing online etc... is not profiting.
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cross border crime
More likely still, what if what's really happening is a "copyright infringer" according to US law, but who is based in another country, where the alleged crime is not in fact recognized as such?
For bloggers, the complication comes with the question of whether I'm bound by UK or US laws, if I sit at a computer in the UK but use a US-based blogging tool.
This is where it would be nice if we kept concepts of crime to 1) there is a victim and 2) there is demonstrable intent. But the
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Ok, Enough Already
When will you copyright whores get it straight?: You can't stop people from linking to content you don't like. Period.
I can stand on the street all day and tell people that around the corner, there is a guy selling fake Rolex watches. As long as I don't know him, or share in the profit he's making (which is already a bad analogy, because last I checked, torrent uploaders aren't making a dime...), I have committed no crime, and can't be charged with anything. Just because this is happening on the InterWebs makes no difference.
So, to put this in perspective, let's just turn the table a little bit, and hopefully you will see the error in your thinking:
I have a new idea for the torrent tracking sites: Instead of marketing yourself as a site for end-users to find downloads that they want, change your marketing to a model which emphasizes helping *copyright owners* find infringing content, by way of torrent tracking.
TorrentWhistleBlower.com strikes me as a possibility.
WAIT! Shouldn't the whistleblower be taken down because he's assisting end-users in finding infringing content? NO! He's helping copyright owners find "pirates" (I fucking hate that term, it's not piracy you fools)
But aren't these two scenarios basically the same thing?
Yes, but you were the one who was trying to stop it. NOW do you see how dumb you are?...No? Still think you have an argument? - well, I tried.
CBMHB
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Re: Ok, Enough Already
The bloke standing on the corner telling people there is a guy around the corner selling fake watches is approached by a Police Officer:
"Thank goodness you came! I've been standing here warning people all day about the crook around the corner!"
He'd only be committing a crime if he tried to stop the policeman from trying to apprehend the watch seller. One question though - would he be committing a crime if he tried to warn the seller that a policeman was on the way?
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Re: Re: Ok, Enough Already
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anyone remember the ....
So I guess preventing a crime is also a crime!
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What about newspapers?
What about deep linking to someone's web site that is criminal as a example of how spammers can successfully rob the general public?
If TV Nightly news reports a problem with the city mayor and you repeat that story to a neighbor are you commiting a crime?
What if you linked to a TVNightlyNews.com article in an email to your mom and she reads it; is your mom committing a crime.
Spain educates the world.
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