European Court To Explore If Linking To Infringing Material Is Infringing

from the again dept

Mon, May 4th 2015 3:37pm — Mike Masnick

A couple of years ago in the Svensson case, the European Court of Justice (CJEU) made it clear (finally) that merely linking to content is not infringement. That was a case involving a news aggregator linking to official sources. However, in a new case that has been referred to the CJEU, the court will examine if links to unauthorized versions of content is infringing as well. The excellent IPKat has the details of the case which involves a blog that linked to some pre-publication Playboy photos in the Netherlands. A lower court had said that it wasn't copyright infringement, but still broke the law, by facilitating access. On appeal, the court found that the free speech concerns outweighed the copyright concerns. From the description by the lawyer representing the blogger ("Geen Stijl news"):

We lodged an appeal on behalf of Geen Stijl on a few grounds which was successful: the Court of Appeal had misapplied the 'quotation' exception in copyright law and did not sufficiently balance the freedom of speech versus copyright protection, as it indicated that 'only in exceptional circumstances' would the freedom of speech outweigh copyright protection, as freedom of speech concerns are taken into account in the law, in particular in the exceptions. The Supreme Court followed our reasoning that copyright is a fundamental right, but that the same goes for the freedom of speech, and that they thus should be considered on equal footing. The Court of Appeal should therefore have considered all relevant circumstances (among which is whether this is commercial speech or a news item) and not only exceptional circumstances. Never before has the freedom of speech been given so much weight in The Netherlands.

That's the good news. On the flip side, Sanoma, the Dutch publisher of Playboy, has appealed on its own, and that's the question that is going to the CJEU. It basically asks how to apply that earlier ruling saying linking is not infringing to a case in which the content being linked to is not authorized -- and whether it matters if the linker knew or should have known the content was infringing.

Given the scenario, this could become a rather important copyright case in Europe, considering how frequently people may end up linking to content that may be infringing.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: cjeu, copyright, deep linking, eucj, europe, european court of justice, geen stijl, infringement, linking, playboy, svensson
Companies: geen stijl, playboy, sanoma

18 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Max (profile), 4 May 2015 @ 4:00pm

Eminently laudable - in the mean time, can I please get a ticket, one way only, to some place where copyright is NOT a fundamental right and is absofuckinglutely NOT on equal footing with freedom of speech...?
[ link to this | view in thread ]
That One Other Not So Random Guy, 4 May 2015 @ 4:57pm

Re:
A ticket to nowhere I'm afraid. It's a lovely place.
[ link to this | view in thread ]
Anonymous Coward, 4 May 2015 @ 5:29pm

Re:
There's always Mars, but I don't have high hopes for survivability in that one.
[ link to this | view in thread ]
tqk (profile), 4 May 2015 @ 5:47pm

Re:
I was going to suggest North Korea, but I doubt the Norks even know what freedom of speech is, so they're both likely at the bottom of the barrel. Try Kazachstan, maybe.
[ link to this | view in thread ]
jupiterkansas (profile), 4 May 2015 @ 6:47pm

I can turn any link to my website into infringing content simply by changing uploading different content to the same address, thereby making anyone that links to me a criminal. So go ahead and make linking illegal. It'll be fun.
[ link to this | view in thread ]
PaulT (profile), 4 May 2015 @ 11:37pm

Re:
Yeah, that was going to be my point. Content can be changed at any point. Links are fixed, not dynamic, and the link target address often does not describe the content (e.g. YouTube videos are random letters, not a title). If I link to something that's authorised, then the content on that link changes later, I should not be liable for anything related to that content. I cannot possibly know what a link will do after I post it.

That fact alone - that I can be retroactively committing some crime without my knowledge - should be enough to throw this out. Doubly so since, by definition, linked content is almost certainly not under my control. There are other concerns, but this should be enough to reject such an idea off hand.

Once again, go after the people actually committing infringement, not the most convenient third party.
[ link to this | view in thread ]
Anonymous Coward, 5 May 2015 @ 1:27am

freedom of speech is far more important than copyright, but in todays environment, you would hardly think so!
[ link to this | view in thread ]
Ninja (profile), 5 May 2015 @ 4:05am

If I talk about how to commit a crime am I a criminal? Same question, different realm. Links tell you how to get to something, news sites use them all the time and sometimes they are borderline criminal but are the news sites reporting on the material to be liable?

Start going after the source, not the general service provider.
[ link to this | view in thread ]
Anonymous Coward, 5 May 2015 @ 5:10am

Does the copyright holder own the character sequence known as a URL which points to said infringing material?
[ link to this | view in thread ]
Anonymous Coward, 5 May 2015 @ 5:42am

If it becomes law that a link to infringement is in itself infringement or illegal to do so then it would be no surprise if people stop showing links posted on their websites to other websites out of fear that they will be deemed a criminal and sued for facilitating copyright infringement as they will not know if what they are linking to is infringement or not and to be safe will not host any links on their website just in case.
[ link to this | view in thread ]
Anonymous Coward, 5 May 2015 @ 5:46am

Re:
And if the different content you upload to your website infringes on copyright even when people click on the links to that content then you could be sued for copyright infringement. I doubt it will be fun then.
[ link to this | view in thread ]
jupiterkansas (profile), 5 May 2015 @ 8:45am

Re: Re:
Not if my website is in a country where that particular copyright law doesn't apply.
[ link to this | view in thread ]
jupiterkansas (profile), 5 May 2015 @ 8:46am

Re:
The MPAA would be just fine with that.
[ link to this | view in thread ]
Tavis, 5 May 2015 @ 9:28am

Can Kevin Bacon can be linked to infringement?
Given the few degrees of separation between anything on the Internet, if you elevate linking to infringing materials to be the exact same thing as infringement you might as well declare the whole Internet illegal after about 6 hops.
[ link to this | view in thread ]
Anonymous Coward, 5 May 2015 @ 9:43am

Re: Re: Re:
Until the US threatens the country like they did with Spain to get them to introduce tougher laws and see how quick they bend over and introduce a law. I hope such country tells the US where to go and don't come back.
[ link to this | view in thread ]
Anonymous Coward, 5 May 2015 @ 9:47am

Re: Re:
They will be happy for every website to be removed from the internet so that they can then use the whole entire internet as one gigantic tv viewing service with them in total control of what gets viewed by people and when and you can sure bet that they will try and introduce some feature to make recording of the media that they play illegal. I hope it never comes to pass.
[ link to this | view in thread ]
Anonymous Coward, 5 May 2015 @ 11:42am

Re: Re: Re: Re:
Or you visit the country or some version of TPP, ACTA, or bastardized trade agreement shits on you and your own local cops help them extradite you.
[ link to this | view in thread ]
Arisia (profile), 6 May 2015 @ 8:17am

What I hope happens...
Infringing link is in the judgement.
Judgement is made available online.
Court sues itself in recursive lawsuit.
Problem sorted.
[ link to this | view in thread ]