Terrible Ruling: EU Decides That Mere Links Can Be Direct Infringement

from the that's-not-how-this-works dept

Last year, we talked about an important copyright case in the EU regarding whether or not linking to infringing material was, in itself, infringing. The case involved a blogger in the Netherlands, Geen Stijl News ("GS Media") linking to some pre-publication Playboy photos. There had been an earlier case, the Svensson case where the European Court of Justice got things right with regards to whether or not hyperlinks could be infringing, but there were some questions left open in that ruling. The court in the Svensson case found that linking to authorized content wasn't infringing. But what about unauthorized content?

And now we have the ruling and it's not very good. Some are trying to spin it as a good ruling, because it basically says that if the link is not for profit, then it's not infringing, but the worrisome part is that if the link is considered "for profit" then it can be direct infringement. Basically, the court tries to split the baby here. It notes concerns that many people had about how posting a mere link to content could be infringement, in that many times those posting the link will have no idea if the original content is authorized. But rather than actually deal with that specific issue, it just basically said "well, if it's a for profit effort, then they can afford to figure out if the content is authorized."

when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

Some are celebrating the flip side, which says that if the linking is not for profit and without knowledge that the work is infringing, then it's not infringing, but even that is troubling. Here's what the court says for the "not for profit" linking:

For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.

Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.

But what the hell does all that mean in practice? Well, that's a complete mess. First of all, as we've been discussing for many, many, many years, drawing the line between "commercial" and "non-commercial" is not nearly as easy as it seems -- and it's basically the same for "for profit" and "not for profit" in the EU's new standard. Just last week we wrote about yet another legal dispute over that exact fuzzy boundary. In an age where anyone can put ads on their site, or use social media to promote their own work or business, how do you determine what's for profit? It's not hard to see how a copyright holder may, for example, point to someone linking to an unauthorized copy of their work and then point to a tweet promoting their work, and say that "well this person uses social media for profit, so this link is infringing."

And, of course, it's even worse for aggregators, search engines and the media. All of those will be considered for profit, so any link to infringing content may now be considered infringing itself. That's... really bad for the internet in Europe. You can see why the Court of Justice tried to split the baby here, but you should remember that splitting the baby isn't a good result. It's designed to threaten to kill the baby to flush out a better result. In this case, one hopes that the end result of this dangerous ruling will flush out an improved copyright law in the EU that doesn't make links infringing. Instead, we seem likely to be getting the exact opposite.

Filed Under: cjeu, commercial, copyright, court of justice, eu, eucj, for profit, linking, noncommercial, not for profit
Companies: geen stijl, gs media, playboy, sanoma

It's 2016 And The EU Is Just Now Getting Ready To Decide If Hyperlinking Is Legal

from the because-wtf dept

Earlier this week, we wrote about a legislative attempt in France to outlaw hyperlinking without a license (really), but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU? As is described in great detail over at the Disruptive Competition Project blog, just this week the Court of Justice of the EU heard a case concerning whether or not linking is legal. We wrote about this case last year, but the court has finally heard the case, with an Advocate General recommendation in early April, and a final ruling in the summer. There was a similar earlier case, the Svensson case, which the EU Court of Justice got right, but there's some concern about this new case.

In Svensson, the CJEU concluded that a link is a communication within the meaning of “communication to the public.” But it let the defendant off the hook on the theory that the communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Simply put, the court reasoned that once the copyright holder makes the work available on the web without technical restrictions (i.e., no paywall), then posting a link to the material doesn’t communicate it to any audience that wasn’t already intended by the copyright holder. Thus, it’s fine to link to something publicly posted online, provided it was posted with the copyright holder’s authorization. No further licensing is required. So, common sense prevailed and crisis averted, right? Not so fast.

Svensson left a crucial question unanswered, and perhaps that question is already clear: What about a link to something that the copyright holder didn’t authorize? For example, what if you post a link on social media to a Buzzfeed article where one of the images that appears in the story wasn’t properly licensed from a photographer, or you link to a leaked document? And where does that leave search engines and other information location tools, which can’t very well determine whether every image, video clip, or article on the websites to which they link has been authorized by the relevant copyright holders before providing you a search result?

This is the question that is before the CJEU in tomorrow’s GS Media case. The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them.

But, of course, if the ruling says that such links are infringing, it could create a huge mess. Any link to unauthorized work could be deemed, by itself, to be infringing. And, the rule would apply to any link accessible in Europe, meaning it would impact people around the globe.

If the CJEU rules that every web user, in Europe and beyond, is expected to verify the copyright status of every item on a page before linking to that page, it could effectively destroy the web as we know it today. Would you have to repeatedly check back on the sites you link to, in case the content on the site you linked to has changed? Would you need to confirm that their licenses are all paid in full? Would you also have to verify the copyright status of links on the pages that you’re linking to? If any of this were the case, social media, search, blogs, comment sections, online journalism could be faced with unmanageable legal liability.

Hopefully, the EU Court of Justice recognizes the ridiculousness that would result from such a ruling, but until this summer, we just won't know.

Filed Under: cjeu, copyright, eu, european court of justice, hyperlinks, infringement, links, svensson
Companies: geen stijl, playboy, sanoma

European Court To Explore If Linking To Infringing Material Is Infringing

from the again dept

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.

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