Europe's Highest Court Says Linking Doesn't Require Permission
from the party-like-it's-1994 dept
Recently, Techdirt has reported on a number of important judgments from the Court of Justice of the European Union, the EU's highest court. Here's another one that represents a good win for common sense. It concerns hyperlinking to copyright materials held on another site (pdf). Here's the background:
Press articles written by several Swedish journalists were published on a freely accessible basis on the website of the Göteborgs-Posten. Retriever Sverige, a Swedish company, operates a website that provides its clients with clickable internet links (hyperlinks) to articles published on other websites, including the site of the Göteborgs-Posten. Retriever Sverige did not, however, ask the journalists concerned for authorisation to establish hyperlinks to the articles published on the site of the Göteborgs-Posten.
The key issue that the court had to consider was whether these hyperlinks constituted an act of communication to the public within the meaning of EU law, because if so, that would give the authors of those articles the right to authorize or prohibit their transmission. In its ruling, the Court of Justice found that such links were indeed an act of communication, but with one important caveat:
The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised.
Applying that to the present case:
As the works offered on the site of the Göteborgs-Posten were freely accessible, the users of Retriever Sverige's site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göeborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige's site, whereas in fact it comes from the Göteborgs-Posten.
That means:
the owner of a website, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.
However, the "freely accessible basis" part is crucial, as the court goes on to note:
The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site's subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.
It's a sensible ruling that's obviously welcome, but it's pretty ridiculous that in 2014 we are still having this kind of discussion about whether the basic mechanisms of the Internet and Web are compatible with copyright law. The default answer for all such questions should be: if it isn't, then copyright clearly needs updating to reflect the realities of the digital world.
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Filed Under: european union, linking
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The ruling doesn't consider what would happen if the stuff being linked to wasn't already unauthorised or an infringement of copyright.
Plus there are other ways of getting people than direct copyright infringement; in the UK, at least, it would be possible to go for them for "authorising" infringement of others, or for secondary infringement for being intimately involved in the infringement of others.
Sorry, but we're going to need a lot more before we get close to running TPB-style sites being legal.
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Not such a get-out-of-jail card?
The court confirmed that, just by linking to the articles, a website (or a blog, or a search engine) should be understood to be "communicating" them and "making them available" -- acts that fall in the scope of the Directive.
That reconfirmation may be the more important aspect of this decision.
The site in this particular case was saved because it was held not to be communicating the work to a "new public".
But I can see lawyers working hard to claim that a site that made content much more accessible (i.e. link sites/search engines) was "making content available", to use the terminology the court has now accepted, to a much wider public than would have found it discoverable or accessible otherwise -- a new public in the language of this decision.
I can also see them working hard to establish that what is forbidden is any activity that "communicates" the work to a public to whom it was not already legally accessible -- so that the mere fact that the public could already access some bit of content wouldn't get a links site off the "making available" hook, if that previous access was unauthorised/infringing.
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Linking should NEVER NEED a get out of jail card
Linking should not have any liability. None. Zero. Zilch.
If you want to go after someone, go after the linked to site! How's that for an idea! Get rid of the infringing content and all the links (including ones you don't even know about!) just stop working! Like magic.
In fact, copyright enforcers should be thankful for links because they point you directly to where the actual infringing content is hosted.
There is another important reason why linking should have NO liability.
1. Suppose Jane at site A posts some perfectly legal content.
2. Joe, who is himself against any copyright infringement, innocently and harmlessly posts a link on his site B to legal material at site A.
3. Later, evil Jane at site A changes the content at that link to something that is content infringement.
4. Now Joe's link from site B now links to infringing material. And this through no action or intent of Joe, who is strongly against copyright infringement.
See the problem here?
Joe should not even have to defend against an accusation of linking -- which should never be considered wrong.
Linking to infringing material is like posting a sticky note telling people where the crack house is. Get rid of the crack house and all the sticky notes, including ones you don't even know about are now irrelevant.
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On access controls
If a hyperlink contains something that lets the user bypass security - say a password - then there is no security on that site since they are passing access restrictions in cleartext. The judge did pretty good after all, but he doesn't understand Internet technology well enough - most people don't, even those who work in the field - to see this possibility.
A cleartext access control traveling across the Internet is not an access control at all, as it is being broadcast. Therefore the URL is a public URL, and no action should be taken legally.
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Re: On access controls
Poor security still implies intent an attempt to protect and should be protected within the law
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If I can view your entire site without even seeing your security measures, then it doesn't actually exist.
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Does this blow up the PRS/PPL business model
But, just like in this case, there is no new public, because the programs/music were already freely available to everyone. So I am not breaking copyright and I can keep my money when they want their licenses renewed.
Anyone see a problem with that?
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Where on earth did the judge get the idea that someone would assume that all links are to the site that hosts the link? This is not a "fact".
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It needs updating for over a decade now. Don't hold your breath.
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