Ridiculous German Court Ruling Means Linking Online Is Now A Liability

from the never-link dept

Mon, Dec 19th 2016 10:42am — Mike Masnick

Earlier this year, we wrote about a crazy decision in the EU Court of Justice, that determined mere links could be direct infringement on commercial websites (with "commercial" being not well defined). Now as various courts in the EU try to put this ruling into practice, they're already making a mess of it. In particular, a German case has set an impossible standard for a site, finding a site to have infringed on the copyrights of a photographer for merely linking to a photograph. And the backstory here is even crazier.

The image in question was originally uploaded to Wikimedia Commons by the photographer and put under a Creative Commons license (unfortunately, no one seems to name which CC license). And then this happened:

This picture was then modified by an unknown third person, who added UFOs to the picture that appear to be flying above the building. This new picture was uploaded by the third person on his website.

The defendant operates a website where he publishes and sells educational material that he creates. In the imprint of this website, the defendant posted a sentence that included the word “UFO”, which linked to the modified “UFO-Version” of the claimant’s picture. Clicking on the word “UFO” a new browser window in which the “UFO-Version” of the picture was shown would be opened.

The photographer deemed that this constituted an infringing use of his work and brought the defendant to court.

Now, let's just review this because we're already stretching all sorts of concepts to the point of breaking. The photographer uploaded an image under a CC license to Wikimedia Commons. Someone else modified it. Someone else -- operating a site that sells educational materials -- merely linked to the modified image from the word "UFO" -- and that's who gets sued.

This seems like a classic "Steve Dallas Lawsuit" in which the target is a corporate entity because "that's where the money is" even if it makes no sense at all for the liability to be applied there.

And here's the really nutty part: the German court agreed because of that insane CJEU ruling that says a "commercial site" should be assumed to know the copyright status of everything they link to. So merely linking to this silly modified photograph, the site itself becomes liable for direct infringement. That's insane. Yes, (depending on the CC license in question), it's entirely possible that the modified version was infringing, but that's no reason to make a site that merely links to that image liable for direct infringement over it.

At this point, if you run a "commercial" website in Europe that links off site to anything, you have a tremendous liability hanging over your head due to the insanities of copyright law.

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Filed Under: cjeu, commercial use, eu, germany, knowledge, liability, linking

55 Comments

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Anonymous Coward, 19 Dec 2016 @ 10:50am

Germany needs its own internet now
Since they don't like anyone having rights or freedoms that they don't want, isolate them and let them listen and read their own generated content. You can't sue people located in other countries that are not breaking your laws( I mean you too United States).
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Anonymous Coward, 19 Dec 2016 @ 10:52am

Re: Germany needs its own internet now
don't worry fellow human being... we may have helped defeat the Germans in WWII, but we certainly saw the appeal of the regime.

Stand by...
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Anonymous Coward, 19 Dec 2016 @ 11:00am

Is it considered a "link" if
1) it is not blue in color
2) you are unable to click on it
3) it is text that you have to copy and paste

Is it hacking to manually change the url in a browser?
LOL - some one years ago claimed this was the case
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Anonymous Coward, 19 Dec 2016 @ 11:02am

when is everyone gonna actually wake up and see that everything that is going on with the Internet atm is all caused by the insatiable desire of the entertainments industries to control everything that happens on it! every case that is ruled in favor of those industries take them one step nearer their goal and one step further that we, the people, lose as far as our unfettered usage of the Internet is concerned. Governments and courts are doing everything possible because they are up to no good on a daily basis and cant be seen to be going too far, too fast so have enlisted the help of the industries in clamping done on ordinary users, so it can be used how they want and not how we want. shout me down as usual, but mark my words, in less than 5 years the Internet will be under the entertainment industries control and we will have to get permission as well as pay for any and all uses. the 'Free for All for Life' which was the intention is being taken from us and we are just sitting back and watching it happen!
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DannyB (profile), 19 Dec 2016 @ 11:07am

Linking is merely giving directions
Telling someone that the Taco Johns is two blocks north and to the right is like linking.

Telling someone that the Crack House is two blocks south and to the left is also like linking.

Why should the first example above be okay (presumably it is okay?), but the second example would be a crime? Maybe someone would make the 2nd statement in order to aid you in avoiding the crack house.
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Roger Strong (profile), 19 Dec 2016 @ 11:11am

Re:
It wasn't just claimed. It's led to arrests and convictions. Not of hackers, but of the people who pointed out the problem.

It may seem obvious that you can plug a different record number into a URL to get someone else's information, but testing it to confirm it can get you arrested.
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MDT (profile), 19 Dec 2016 @ 11:17am

Internet to shortly become unusable in the EU
Any website hosted in the EU will have to remove all links, to avoid this, and put up a disclaimer on why. Any international company with business offices in the EU will have to institute a special check on their websites, and remove all hyperlinks if the destination is an IP address in the EU.

Also, if I were an EU based ISP, I'd start looking into stripping out hyperlinks, as the next obvious Dallas target is the ISP's for sites outside the EU, after all, the ISP is delivering the content.

Once it hits a critical mass, the Internet will become unusable in the EU, and enough citizens (and more importantly to politicians, moneyed companies) will be ticked off that this will get fixed. But only when the economic impact hits home and everyone moves their websites and offices outside the EU, lowering the economy further first. Much as Spain's Google Taxes got trashed quickly.
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That One Guy (profile), 19 Dec 2016 @ 11:22am

Collateral damage, what's that?
So unless any site hosted in the EU, and especially germany wants to risk being sued, they basically have to not link to anything, ever, that they don't personally own the copyright to.

Copyright infringement charges for linking to something someone else created. Chalk this up to yet another example of 'The only people that respect copyright law are those ignorant of it, or that have a financial incentive for it being broken'.
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Ninja (profile), 19 Dec 2016 @ 11:24am

Reminds me of that landscape issue where people started to remove buildings and other things in images of some landscape because of copyright. These things effectively disappeared. We are disappearing our culture plain and simple.

Or, Europe is. If they wanna keep moving into irrelevance then it's the right path. If I were any site owner in Europe I'd avoid Europe like the plague.
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Ninja (profile), 19 Dec 2016 @ 11:26am

Re: Internet to shortly become unusable in the EU
That. Bring the chaos. It's amazing the net still works there.
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Ninja (profile), 19 Dec 2016 @ 11:27am

Re:
"when is everyone gonna actually wake up and see that everything that is going on with the Internet atm is all caused by the insatiable desire of the entertainments industries to control everything that happens on it!"

It's the question we are dealing with here in TD and other sane places for quite a few years now.
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John Cressman, 19 Dec 2016 @ 11:45am

Duh
They're Europeans, of course they are insane.

Why does anything the far left socialist Europe does surprise anyone?
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Anonymous Coward, 19 Dec 2016 @ 11:47am

Re: Collateral damage, what's that?
I wonder what will happen to facebook. Also, wouldn't all search engines now be liable? That might be a quick way to fix the law is all major search engines stop working.
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RespectThatItsNotTheUS, 19 Dec 2016 @ 12:05pm

They are fighting for their culture
I know it seems harsh from a point of view of U.S. but Germany like France are fighting to save their culture one link at a time.

Watched a program this past week discussing the difference between Euro nations/states and the United States. In Euro, the literacy rate is higher in part due to people reading physical media, they stated that 60% of news was in magazine or news paper form, that the morning routine would be a coffee and a paper (imagine how quaint that is).

The linking or publishing in part or whole of newspapers or magazines undermines those said physical media forms and with it, pushes the narrative to fake news or headlines vs the stories and full content.

I sickens me that folks here in the U.S. are pushing other countries to be more like the U.S. media, when the media here is bag loads of deplorable.

The U.S. constitution doesn't extend beyond the borders, perhaps it's time to realize that and respect that other countries with higher literacy rates wants top preserve their culture and keep the clowns that spread false information or make a quick buck clickbaiting content that wasn't produced by those same linkers.
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jupiterkansas (profile), 19 Dec 2016 @ 12:06pm

Re:
You could have said all this 10 years ago. It's harder than it seems to lock down the internet. They keep trying though.
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Anonymous Coward, 19 Dec 2016 @ 12:24pm

Re: They are fighting for their culture
That is quite possibly the dumbest argument I've ever read.
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That Anonymous Coward (profile), 19 Dec 2016 @ 12:38pm

*sits back and waits for the net to detect the damage that is Germany & route around it*
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That One Guy (profile), 19 Dec 2016 @ 12:41pm

Re: They are fighting for their culture
So lemme see if I have this right:

People in the EU are more literate because they read more physical stuff, rulings like this are good because they make it more(if not effectively impossible) difficult to host things digital, which will push people back to physical medium, and all this is to protect people from 'fake news' and catchy headlines?

Yeah, I don't think any comment I could make would do that pile of absurdity justice. If the good old paper can't compete with the digital equivalent, leading to illiteracy and puppies being born with only half a tail then it's on them to step up their game, not the courts to hamstring sites to give them an advantage and force people back a few decades.
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Anonymous Coward, 19 Dec 2016 @ 12:45pm

Re: They are fighting for their culture
"The U.S. constitution doesn't extend beyond the borders, perhaps it's time to realize that and respect that other countries with higher literacy rates wants top preserve their culture and keep the clowns that spread false information or make a quick buck clickbaiting content that wasn't produced by those same linkers."

First, I do agree that fake news is bad except that it usually only takes me about 30 seconds to determine if it is fake or not. Otherwise your argument is null since the company being sued is a person that sells educational materials and doesn't have anything to do with the news, clickbait, or even US Media. Basically that ruling is eventually going to break the internet in EU. The internet lives by linking and will break apart if suing third parties becomes popular. Maybe EU should go back to Minitel to control it better. The internet allows everyone a voice, once you start making things illegal on the internet. It can easily lead to abuse as we see time and time again.
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Matthew Cline (profile), 19 Dec 2016 @ 12:59pm

Re: They are fighting for their culture
If the intent is to protect paper magazines and newspapers against encroachment by the Internet, then they're doing it a roundabout manner.
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DannyB (profile), 19 Dec 2016 @ 1:00pm

Re: They are fighting for their culture
The literacy rate of a nation is largely a reflection of its education system.

If a newspaper wants to publish or not publish its content online is the newspaper owner's own choice. Whether you, or whether I agree with the owner's choice doesn't really matter.

If online newspapers undermine dead tree newspapers, then that's progress. The telegraph undermined the pony express. The telephone undermined the telegraph. The automobile undermined the horse and buggy. Things change.

Fake News is unrelated whether news is online or in dead tree format. Every country probably has had for decades, tabloid news in dead tree format that is loaded with fake news. The real question is how gullible are people? The real lesson is determine what news sources you trust -- no matter what format they are published in.
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Roger Strong (profile), 19 Dec 2016 @ 1:09pm

Re:
Americans don't like German censorship and opposition to open linking, while Germans don't like how the NSA spied on them and their government.

You refer to the claim "The Internet interprets censorship as damage and routes around it!" Bruce Sterling gave the counterpoint: "The NSA interpreted privacy as damage and routed around it."
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Anonymous Coward, 19 Dec 2016 @ 1:23pm

An alternative outcome?
Well, it seems to me that *everything* Google links to is copyrighted content they don't have the copyright on, they could just shut down their search engine for any EU IP addresses.

Of course, this would result is all manner of internet drama. To get their Google back, they could 1) rewrite the law, or 2) have everyone start licensing everything on the web CC0 with blanket licenses at the domain level (almost a "If you don't want to give it away for free, then it's not welcome on our site" sort of policy).

Of those two options, which one do you think would happen faster?
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Anonymous Coward, 19 Dec 2016 @ 1:31pm

Re: They are fighting for their culture
I wouldn't print out this dross for my cat to crap on. After she read it of course...
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bob, 19 Dec 2016 @ 1:52pm

from the German people.
Bye, bye Google News. It was fun while it lasted.
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Anonymous Coward, 19 Dec 2016 @ 2:12pm

Re: Germany needs its own internet now

You can't sue people located in other countries that are not breaking your laws( I mean you too United States).

The United States has them extradited.
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Anonymous Coward, 19 Dec 2016 @ 2:16pm

Re: Linking is merely giving directions
> Telling someone that the Crack House is two blocks south and to the left is also like linking.

I once knew of someone convicted of felony drug dealing for telling an undercover the name and address of an actual drug dealer.
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Anonymous Coward, 19 Dec 2016 @ 2:20pm

Re: Internet to shortly become unusable in the EU
Europe is still pissed off that they didn't invent the internet and would like to see it replaced with something of their own making. If they can't do that with technology, they'll do it with laws.
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Anonymous Coward, 19 Dec 2016 @ 2:24pm

Abolish Copyright
This is the kind of crap it always leads to.
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Anonymous Coward, 19 Dec 2016 @ 2:34pm

Companys will move their servers out of germany ,
to avoid getting sued ,
there might be german websites based in the uk.
Whoever wrote this law does not understand the way the web works or is some kind of pro copyright fanantic.
Every year some eu country seems to pass a law that
breaks the web .The eu needs to pass a law to protect fair use for websites that allows displaying part of a text
or part of an audio or video clip for the purpose
of education ,commentary ,criticism or parody .
And for use by any website as part of reporting the news .
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Roger Strong (profile), 19 Dec 2016 @ 2:40pm

Re: Re: Internet to shortly become unusable in the EU
They didn't invent the Internet Protocol, but Europe was already well-connected with interconnected X.25 networks carrying services like Compuserve, Minitel etc. and of course email.

The "killer app" for the modern internet was the World Wide Web, which was invented in Europe.
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Anonymous Coward, 19 Dec 2016 @ 3:23pm

Re: Re: Re: Internet to shortly become unusable in the EU

Europe was already well-connected with interconnected X.25 networks carrying services like Compuserve, Minitel etc.

Which the Internet replaced. And, yep, they're still pissed about it.
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Anonymous Coward, 19 Dec 2016 @ 3:26pm

Re: Re:
The webmaster should be the one answering questions.
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Anonymous Coward, 19 Dec 2016 @ 3:28pm

Re:
Yeah ... it's as if the entertainment business thinks the internet belongs to them.
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Anonymous Coward, 19 Dec 2016 @ 3:58pm

Pinky and Brain channel Klink and Schultz...
Pinky (Schultz): Atten Hut, Col Klink, those darn googles are making all the moneys from our webey things, what are we going to do?

Brain (Klink): First they foiled my plan to make them pay when they linked to me, then they foiled my plan when I tried to make them pay to link to my pictures. I have finally figured it out, we will stop all that infernal linking and see how those googles like it now.

Pinky: How are we going to do that?

Brain: We will make it illegal to link to us, and then when the world starts to collapse without access to the German riech, we will allow them to link IF THEY PAY US... Dun Dun Duu (guest appearance by Belt, all rights reserved, all your bases are belonging to belt)

And here we are, with Pinky/Brain (Klink/Schultz) running Germany and trying to control the rest of the world.
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Anonymous Coward, 19 Dec 2016 @ 4:22pm

Re: Re: Internet to shortly become unusable in the EU
They can have Al Gore.
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Anonymous Coward, 19 Dec 2016 @ 5:16pm

Re: Duh
Why are some people ignorant of their own ignorance .. to the point of embarrassing themselves in public?
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Anonymous Coward, 19 Dec 2016 @ 5:18pm

Re: Re: They are fighting for their culture
But those poor puppies .... what about the puppies??????
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Anonymous Coward, 19 Dec 2016 @ 5:22pm

Re: Re: They are fighting for their culture
"The real question is how gullible are people?"

Yup. And I doubt the answer would be uplifting.
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Anonymous Coward, 19 Dec 2016 @ 5:24pm

Re: from the German people.
Who even reads that?
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Roger Strong (profile), 19 Dec 2016 @ 8:52pm

Re: Re: Re: Re: Internet to shortly become unusable in the EU
So despite Europe having invented the World Wide Web, Europe's politicians setting policy based on anger that TCP/IP replaced X.25.

That's some nerdy politicians they've got there.
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Anonymous Coward, 20 Dec 2016 @ 2:13am

Re: Re: They are fighting for their culture
How in hell do you preserve literacy rates by banning linking?

Also how is reading physical media superior (or inferior) for that matter to reading the same media online.
The "routine" of coffe & morning paper pretty much only applies to people (most of them MEN) that are over 50.
Most 30 and even 40 year olds (and under) will check the news on a smartphone, tablet or PC.

No, this is just European leaders trying to squeeze aggregators for money.

Also shitty news are a thing in print too. Hell rags still sell by the truckload. Especially paparazzi ones. Bought by old people who like to act appalled at "how the youngsters act nowadays".
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DannyB (profile), 20 Dec 2016 @ 6:16am

Re: Re: Re: They are fighting for their culture
By banning linking, you force people to read the same words in dead tree format instead of online.

Words printed in dead tree format have a superior magical quality of making you more literate.

It is not just old people reading trash rags. There are also younger people looking for important news like: "Space Aliens Ate My Baby!" and the like.
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DannyB (profile), 20 Dec 2016 @ 6:20am

Re: Re: from the German people.
I read Google News every day.

Then when I get home, I print out a copy of the day's news to use as bird cage liner.
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DannyB (profile), 20 Dec 2016 @ 6:21am

Re: Abolish Copyright
As I've said before: copyright inevitably and always leads to censorship.
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Anonymous Coward, 20 Dec 2016 @ 6:43am

Its time for Wikipedia, Google, etc., to protest by removing ALL links
Show 'em what the web will look like w/o links for 24 hours.

Google will tell you that it has found something, but won't tell you what it is.

Wikipedia will tell you it has an article, but won't tell you where to find it.
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Anonymous Coward, 20 Dec 2016 @ 8:38am

Re: Re: Re: Re: Re: Internet to shortly become unusable in the EU
Oh yeah, they just *love* the internet. This story proves it!
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Anonymous Coward, 20 Dec 2016 @ 8:40am

Re: Re: Re: Re: They are fighting for their culture
Notice how much "trash rags" sounds like "hash tags"?
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Anonymous Coward, 20 Dec 2016 @ 8:42am

"...the insanities of copyright law."
Stop the insanity. Abolish copyright.
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Anonymous Coward, 20 Dec 2016 @ 11:58am

Re: Germany needs its own internet now
Give German people a Stasi internet ID card.
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beltorak (profile), 21 Dec 2016 @ 7:37am

Re: Linking is merely giving directions

Telling someone that the Taco Johns is two blocks north and to the right is like linking.

Telling someone that the Crack House is two blocks south and to the left is also like linking.

Why should the first example above be okay (presumably it is okay?), but the second example would be a crime?

That's a fairly apt analogy here, so here's an answer. The argument goes that you should know that what goes on at the crack house is illegal, and therefore giving someone directions to the crack house is just as illegal. This is exactly what they mean - "people who link to things online must make sure the thing linked to is not infringing".

The problem under this logic is of course that you had no idea that crack was being sold out of the Taco Johns, so both are in fact illegal! Congratulations! You too are guilty of possession with intent to distribute!
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Dr evil, 22 Dec 2016 @ 1:41am

Re: Re: Linking is merely giving directions
Actually, I disagree.. Driving the person to the taco house or crack house is like linking not just giving directions.. Solution is even more simple, link to the other webSITE or PAGE, not the actual image.
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DannyB (profile), 22 Dec 2016 @ 6:26am

Re: Re: Re: Linking is merely giving directions
Why do you believe this would not be infringing?

We're talking about people who are responsible for Hollywood Accounting and Payola, and claims that piracy is costing $74 TRILLION dollars, etc and similar insanity. (eg, greater than the entire world GDP combined.)

Maybe linking to a page that links to an infringement should also be an infringement. That is 1 hop away. What about 2 hops away? What about the six degrees of Kevin Bacon on the internet? Maybe it should just be infringement to link to anything on the internet that could recursively link to anything infringing. This would instantly eliminate search engines.
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Wendy Cockcroft, 30 Dec 2016 @ 5:49am

Re: Duh
Mr Cressman, when you've actually looked up and learned about socialism, get back to me. It may amuse you to note that the endgame of communism is the abolition of the state, a fact not lost on Breitbart's Steve Bannon, who knows more about politics than you do.

If we really did have far left socialism in Europe we wouldn't have a military-industrial complex demanding the sacrifice of babes and sucklings in Yemen for jobs in England; they would only make what we need to keep the country safe. We certainly wouldn't have the crippling austerity that has rendered many people homeless and many more using foodbanks. And don't get me started on social housing - that's being flogged to propitiate the great god Market, or something. And the Greek debacle would not have been allowed to happen.

Far left socialism? The watered-down version we've had since the Fifties has barely a drop of it in the mix now.
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Wendy Cockcroft, 30 Dec 2016 @ 5:51am

Re: Re: Abolish Copyright
That's because, as Pirate Party founder Rick Falkvinge pointed out, it began as a tool of censorship.
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