Who Needs Article 13: Italian Court Finds Facebook Liable For Hosting Links

from the seems-like-a-problem dept

As we've noted a few times now, the legacy entertainment business has decided that they no longer support Article 13, because it wasn't draconian enough. But, the real reason for their sudden cold feet was that there were a few indications that some of the European Courts might give them everything they wanted (and more) without even needing Article 13. And, that might just be happening. Recently a court in Italy found Facebook liable for hosting links to infringing content. Eleonora Rosati at IPKat both wrote about this and (thankfully) translated key parts of the ruling, such as the following:

The publication of RTI's audiovisual content through Facebook is an act of communication to a new public in that it is a public other than the one authorized by the claimant. Indeed, the links published through the Facebook page led not to content published by RTI itself through its own platform, but rather content published through a third-party site (YouTube) not authorized by RTI to making available the audiovisual content at issue. It follows that, lacking a specific authorization by RTI, the making available to the public (through a third-party portal) of the intro to animated series 'Kilari' must be considered unlawful.

Got that? This is a case where someone posted links to (likely) infringing videos on YouTube to Facebook. And of all the possible parties liable for infringing content on YouTube... the court agreed that it's Facebook that is liable because a Facebook user posted links to content on YouTube that is likely infringing. And somehow that's Facebook's fault. This is... ludicrous. But, this is also why the legacy entertainment companies are licking their chops over similar bad court rulings in the EU even absent Article 13.

The ruling's problems don't stop there. It does suggest that knowledge of the infringement is necessary, but (unlike the very reasonable -- and only workable -- standard in the US that the knowledge be specific of the infringing work and where it is) decided that no specific details are necessary for Facebook to become liable. As Rosati summarizes:

According to the Rome court... to notify a provider of an infringing activity it is not necessary to submit the relevant URL for each and every infringement.

This, again, is the kind of standard that copyright holders have been drooling over, in part because it makes it literally impossible for platforms to comply and thus leaves them liable to all sorts of lawsuits. And thus, even without Article 13, the EU is already completely screwing up the internet.

Filed Under: article 13, copyright, eu, intermediary liability, italy, links
Companies: facebook, youtube

Facebook Sued In Israel For Blocking All Links To Site Critical Of Facebook & Suggesting Site Was 'Unsafe'

from the questions,-questions,-questions dept

Mizbala is an Israeli marketing/creative agency that runs a news site as well, commenting on issues related to internet marketing and advertising. The site has been quite critical of Facebook, including a few recent posts where it mocked Facebook for its aggressive/arbitrary blocking of users and content:

Over the past few days, Mizbala has written about other cases in which Facebook automatically blocked and/or erased posts. In one case, comedian Guri Alfi complained about the erasure of one of his posts, which he attributed to the fact that he credited photographer Guy Kushi. The Hebrew word “kushi” is a derogative term for blacks.

In another incident, Gili Cohen, a participant in the “Big Brother” reality show, was blocked for 30 days after posting a video clip in which he harshly criticized the fact that he and others had been blocked for using “banned words” in old posts.

This is something that we've been known to post about on quite a few occasions as well. The fact is, Facebook isn't always good with its blocking decisions. Frankly, this isn't a huge surprise, given that it has to use a combination of algorithms and low level human reviewers to cover a fairly large amount of content -- a decision the company made when it decided that it would be the arbiter of what is and what is not allowed on the site. Mistakes are going to happen, and with it comes people mocking Facebook for making bad decisions.

However, with Mizbala, something extra strange happened. Soon after posting a few of these stories mocking Facebook, suddenly Mizbala itself was blocked by Facebook. Entirely. Even worse, previous links to Mizbala disappeared and anyone posting a link to Mizbala was given a fairly scary sounding message suggesting the site was deemed "unsafe" by Facebook.

In some other cases, it told people posting Mizbala links that the links "might be spam."

Yeah, so that certainly feels pretty sketchy. The site is regularly critical of Facebook -- specifically how it blocks people arbitrarily -- and suddenly it too gets blocked by Facebook with a nasty warning that the site itself is "unsafe." Even if this was an accident, it really looks quite bad.

In response, Mizbala has sued Facebook in Israel arguing that the messages associated with the block are defamatory and a "false description" of Mizbala (which appears to be similar to the concept of "false light" in American law).

I'll admit that I'm a bit torn about this whole thing. The arbitrary/hamfisted blocking is pretty ridiculous, and it's made much worse when it comes right after Mizbala was directly criticizing Facebook for arbitrary blocking and when it then is telling people that the site is either unsafe or spam. But, at the same time, it seems like a flat out public shaming is always going to make more sense here than going legal. In the US, at least, this kind of lawsuit would almost certainly fall flat (quickly). Nearly a decade ago, we wrote about a case in which it was found that Section 230 of the CDA protected an antivirus company (Kaspersky) from calling some adware "spyware." CDA 230(c)(2) makes it quite clear that attempts by companies to filter content taken in good faith don't expose the company to liability (of course, if this case were in the US, I'd guess that Mizbala could argue that the block wasn't made "in good faith.")

Of course, the case is in Israel, not in the US, and Israel doesn't have an equivalent to Section 230 for cases like this.

Given all that, this case could be troublesome. Obviously, Facebook's actions here look sketchy, and I'm all for calling out the company for its bad filtering policies, and the really iffy "unsafe" labelling it gave to the site here. But by putting liability on a company for deciding to block certain sites opens up a pandora's box of mischief. It could enable just about any site that was blocked -- even if for legitimate reasons, to gum up the judicial system with lawsuits and would make it much more difficult for lots of internet companies (including small ones who don't have the litigation budget of Facebook) to have to defend almost any moderation decision they make. This is the kind of thing that Section 230 protects against in the US, letting companies make their own moderation decisions (while the First Amendment then lets anyone mock the companies for making bad decisions).

Filed Under: blocking, false description, false light, filters, intermediary liability, israel, links, section 230
Companies: facebook, mizbala

Scientists Realizing That EU Ruling On Copyright & Links Just Made Science Much More Difficult

from the to-promote-the-progress-of-science dept

Last week, we wrote about a terrible copyright ruling from the Court of Justice of the EU, which basically says that any for-profit entity that links to infringing material can be held liable for direct infringement, as the "for-profit" nature of the work is seen as evidence that they knew or should have known the work was infringing. We discussed the problems with this standard in our post, and there's been a lot of commentary on what this will mean for Europe -- with a variety of viewpoints being expressed. One really interesting set of concerns comes from Egon Willighagen, from Maastricht University, noting what a total and complete mess this is going to be for scientists, who rarely consider the copyright status of various data as databases they rely on are built up:

Now, realize that in many European Commission funded projects, with multiple partners, sharing IP is non-trivial, ownership even less (just think about why traditional publishers require you to reassign copyright to them! BTW, never do that!), etc, etc. A lot of funding actually goes to small and medium sized companies, who are really not waiting for more complex law, nor more administrative work.

A second realization is that few scientists understand or want to understand copyright law. The result is hundreds of scholarly databases which do not define who owns the data, nor under what conditions you are allowed to reuse it, or share, or reshare, or modify. Yet scientists do. So, not only do these database often not specify the copyright/license/waiver (CLW) information, the certainly don't really tell you how they populated their database. E.g. how much they copied from other websites, under the assumption that knowledge is free. Sadly, database content is not. Often you don't even need wonder about it, as it is evident or even proudly said they used data from another database. Did they ask permission for that? Can you easily look that up? Because you are now only allowed to link to that database until you figured out if they data, because of the above quoted argument. And believe me, that is not cheap.

Combine that, and you have this recipe for disaster.

A recipe for disaster indeed.

This is, of course, not the first time we've noted the problems of intellectual property in the science world. From various journals locking up research to the rise of patents scaring off researchers from sharing data, intellectual property keeps getting in the way of science, rather than supporting it. And that's extremely unfortunate. I mean, after all, in the US specifically, the Constitution specifically says that copyrights and patents are supposed to be about "promoting the progress of science and the useful arts."

Over and over again, though, we see that the law has been twisted and distorted and extended and expanded in such a way that is designed to protect a very narrow set of interests, at the expense of many others, including the public who would benefit from greater sharing and collaboration and open flow of data among scientific researchers. Having the CJEU make things worse in Europe isn't going to help Europe compete -- and, unfortunately, it does not look like those in Europe looking to update its copyright laws understand any of this yet.

Filed Under: copyright, eu, links, research, science

Another Day, Another Problem With Facebook's Random Decisions To Block Content

from the broken-systems dept

Last week one of the big stories of the week was Facebook blocking people from posting an iconic photo from the Vietnam War because it showed a young girl, naked, running from an attack. After lots of press and lots of public outcry, Facebook relented and claimed that it would be adjusting its policies. And yet... another week, another set of stories of problems on Facebook. It's unclear how widespread this is, but on Monday there were suddenly reports (on Twitter, of course) of Facebook randomly blocking perfectly reasonable links. The first example I saw of this was reports that Facebook was blocking this story from The Intercept about Rep. Barbara Lee's lone vote against the PATRIOT Act (the only member of the House to vote against it) a few days after September 11th. Seems like the kind of story Facebook would appreciate, but: Then I saw famed writer John Scalzi running into similar issues over his blog post mocking some racists on Twitter: And then there were reports (sure to kick up the conspiracy theories!) that Facebook had blocked a story about Hillary Clinton's health: But, on the flip side, someone also reported that trying to post the NY Times job opening for a climate change editor... was also blocked: I could go digging for more -- and there are likely many more examples. This is almost certainly some sort of technical glitch that will be sorted out quickly, if it hasn't been already. But it still should serve as a reminder, to be wary of putting our faith entirely in 3rd party platforms for our media access, when they have the ability to block at will (or even somewhat arbitrarily when the bots go crazy).

Filed Under: blocking, censorship, journalism, links, media, platforms
Companies: facebook

Reddit's Technology Subreddit Ponders Banning Wired & Forbes For Blocking Adblock Users

from the block-the-blocking-of-the-blockers? dept

Over the last year there have been a growing number of websites that have decided to "deal" with the rise of ad blockers by blocking ad blocking users entirely. Blocking the blockers was the recently recommended course of action by the Internet Advertising Bureau (IAB), which suggested the best way to have a "conversation" about ad blockers was to try and prevent them from being used. And while sites like the New York Times, GQ, Forbes and Wired have all happily pursued this course of action, their actual implementation has ranged from frustrating to downright comical.

Mike has noted he doesn't use an ad blocker, yet is somehow blocked by all of these sites completely. I do use an AdBlocker and whitelist websites I care about, but even after whitelisting the entire Wired domain, this is what I see whenever I've tried to view a Wired story in 2016:This has been a problem since the website first announced it was going to be blocking adblock users earlier this year. At the time, Wired stated that ad block blocking was necessary because on an average day, 20% of Wired readers block Wired ads:

"On an average day, more than 20 percent of the traffic to WIRED.com comes from a reader who is blocking our ads. We know that you come to our site primarily to read our content, but it’s important to be clear that advertising is how we keep WIRED going: paying the writers, editors, designers, engineers, and all the other staff that works so hard to create the stories you read and watch here."

Wired's ingenious solution to this problem was to impose a system that's so shitty, it can't detect whether you use an ad blocker or not? A solution that's so ham-fisted it's actually pissing off and blocking users that have never even considered using an ad blocker? Like paywalls, Wired's also alienating editors and writers that might otherwise link to its content, but decide not to for risk of annoying their own readers. Wired's "solution" causes far more problems that it fixes, and so far the company's been mute to user complaints, likely in the hopes that annoyed users will just pony up $1 a month for its "ad free" option.

Since users being sent to these websites are increasingly annoyed, moderators over at the technology subreddit have announced they're considering banning ad block blocking websites from the subreddit completely. They don't even mention that these blockers don't work, but they do point out that websites like Forbes have been pushing malware at users should they lower their defenses:

"It has come to our attention that many websites such as Forbes and Wired are now requiring users to disable ad blockers to view content. Because Forbes requires users to do this and has then served malware to them we see this as a security risk to you our community. There are also sites such as Wall Street Journal that have implemented pay-walls which we were are also considering banning. We would like all of your thoughts on whether or not we should allow domains such as Forbes here on /r/technology while they continue to resort to such practices."

It's entirely possible that the mods face pressure from higher up to avoid this route, but it remains an obvious indication of a growing annoyance among consumers, many of whom see ad blocking technologies as just another privacy and security tool. And like any such tool, the rise of ad block blocking has simply given birth to another game of cat and mouse -- the development of tools to help ad block users block detection more easily. Yeah, we're now busy blocking the blockers of blockers. This is the glorious "solution" to a problem that started with websites pushing too many poorly designed ads and intrusive technologies?

So what has trying to block ad block users actually accomplished outside of annoying potential readers, reducing traffic and making your website look tone deaf and foolish? Here at Techdirt we let users disable ads, but simply ask they try to support us in other ways (the Insider Shop, Deals Store, or one of our crowdfunding campaigns). That seems like an easier route than forcibly trying to dictate what tools consumers can and cannot use. Meanwhile, if websites really want to have a "conversation" about ad blockers, the first step would be to really listen to customers when they explain why they're using them.

Filed Under: ad blocker blockers, ad blockers, ad blocking, internet ads, links, social media
Companies: forbes, reddit, wired

Norwegian Police Seize Domain Name For Linking To Sites Offering Popcorn Time

from the turtles-all-the-way-down dept

Over the last couple of years, the increasing popularity of the open source streaming software Popcorn Time has turned into one of the film industry's biggest nightmares. Not just because it's free, but also because it provides an extremely easy-to-use service. The fact that it is open source -- and therefore essentially impossible to eradicate -- just makes things worse. As part of the film industry's attack on Popcorn Time, a UK judge was persuaded a year ago to order a group of web sites to be blocked purely on the grounds that they were distributing the Popcorn Time software. That was the first step down a slippery slope, and it seems that the second step has now been taken in Norway. A post on TorrentFreak reports that the Popcorn-Time.no domain name has been seized by the police there:

In a public statement the Norwegian police and prosecution unit notes that the domain is believed to be complicit in criminal copyright infringement by linking to third party content.

"The Norwegian domain popcorn-time.no helps electronic publication by linking to other domains where the required software can be downloaded. In addition, the Norwegian popcorn-time.no domain posted information, user manuals and news updates," the police states.

Yes, providing information, and linking to a site that allows the Popcorn Time software to be downloaded, is now enough to get a site closed down, in Norway at least. It can only be a matter of time before a domain is seized somewhere because it dares to commit the terrible crime of linking to a site that points to other online locations where Popcorn Time is available. After that, it's turtles all the way down.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, links, norway, popcorn time

Google Partially Caves To French Demands For More Global Censorship Of 'Forgotten' Links

from the disappointing dept

For a while now we've been highlighting the problems of Europe's "Right to be Forgotten" concept as it applies to search results. The idea is that, rather than a search engine, Europe thinks of companies like Google as creating something of a "dossier" on individuals, over which they should be able to delete old or irrelevant "data." This means that, in the EU, people can apply to Google to "de-link" certain stories that they consider to no longer be relevant, even if those stories are 100% accurate and true. Not surprisingly, given a chance to "delink" yourself from truthful information has resulted in lots and lots of people demanding Google "forget" links about them. Google now has a process to go through these, and certainly has rejected many requests, but it still appears to accept many requests that appear to be obviously bogus attempts to hide information someone just dislikes.

Last summer, French regulators decided that Google wasn't doing enough, and that Google needed to not just censor links on Google's EU domains, but globally. Google responded, noting that this was highly problematic, given that the EU did not have jurisdiction over the globe, and France basically responded with a "shut up, do it anyway."

And now it appears that Google has gone back to the French regulators with a partial solution. While some have said it means that Google will, in fact, start "forgetting" links globally, that does not appear to be the case from looking at the details. Instead, it looks like Google will now try to block based on where Google thinks users are coming from, rather than which Google domain they're using. This is a subtle difference which, in most cases, may not be different at all. That is, when you visit Google from a variety of countries, Google already tries to geolocate you, and will often redirect you to the "local" version of the search engine -- such as Google.fr in France.

Under the current RTBF system, Google removes those links on the specific searches if you're on such an EU domain. However, if you're in France and you force your browser to visit Google.com, the same links would not be missing. So the "compromise" is that now Google will remove the links based on where it thinks you physically are, even if you force your browser to visit a non-local domain name. This will not really impact that many people -- just those who force Google to visit a different domain than their local domain. But, still, it's a further compromise and a move towards greater censorship of accurate link results. Of course, what's stupid is that basically anyone who knows enough to force Google to not use a local domain probably also knows how to use a VPN or proxy to appear to be coming from outside Europe.

Still, the big question now is whether or not French regulators will find this an "acceptable" compromise, or if they will continue to insist on global censorship over accurate information in an effort to suppress truthful information.

Filed Under: eu, france, global search, jurisdiction, links, right to be forgotten, search
Companies: google

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

Another Court Logically Concludes That Linking To Allegedly Defamatory Content Isn't Defamation

from the common-sense-and-logic-prevail-THIS-TIME dept

Many members of the public believe the internet is subject to a completely different set of laws when it comes to defamation. Fortunately, sanity (mostly) continues to reign when courts apply REAL laws to newfangled message delivery systems. There are exceptions, of course. An Australian court recently declared Google to be the "publisher" of defamatory content posted by other people at other websites, but returned in search results. A Canadian court found a blogger personally liable for republishing defamatory statements made by others.

Fortunately, very few courts have found simply linking to defamatory content to be an act of defamation. In fact, the exception to the rule was, of all things, a bankruptcy court, which decided sending someone an email with links to defamatory content could be considered defamation.

Eric Goldman has the details on yet another case to add to the "linking ≠ defamation" body of caselaw.

Another court has ruled that linking to defamatory content isn’t a defamatory republication of the content. I just blogged on a similar result in Life Designs Ranch, Inc. v. Sommer. The only twist here is that the person posted the link to Facebook and then “liked” their own post. Putting aside the social faux pas of liking your own post, the “liking” does not affect the defamation analysis.

That's the crux of the lawsuit, as far as it pertains to social media platforms and their encouragement of "sharing" possibly defamatory content. (And, I guess, baby pictures and Minion-featuring quasi-memes...) The defendant's self-fist-bump of "liking" her own status update didn't suddenly turn the posted material from "just a thing I'm throwing out there" to "defamatory content I heartily endorse."

There appears to have been several issues with the defamation claims made by the plaintiffs, including naming additional defendants after the statute of limitations had expired and a failed argument that one of the plaintiffs was a "private citizen," despite the allegedly defamatory material clearly discussing his former position as an elected official.

[I]n view of his unquestionably public role in the relevant community of Emmaus, Slozer must also be deemed a public figure for purposes of a defamation analysis in the circumstance at issue in this case. This conclusion is further compelled by the fact that the statements at issue here are directly connected to, and concerned with, criticisms of Slozer’s record in his elected position in Emmaus municipal government. Although it cannot be said that one categorically renounces a private life in all respects upon taking public office, it is but a truism to acknowledge that public actions by a public servant remain of legitimate public concern even after an official leaves office. And where such an official continues to participate vocally in public affairs, he may not so easily dissociate himself from his role as a “public figure.” On the present facts, there is, therefore, no question that in the relevant community of Emmaus, Plaintiff Slozer maintained the status of public figure during the 2011 campaign season for the purposes of defamation law.

And, while the court did find that the linking (and "liking") was not defamatory, it also found the original content to be merely statements of opinion, rather than libelous.

Although hardly a lofty exposition of the issues evidently at the forefront of the campaign -- much less a shining example of political pamphleteering worthy of the heritage bestowed by Paine and his erudite cohort of Founding Fathers -- the statements about Donches and Slozer are nevertheless not capable of defamatory meaning as a matter of law. Properly viewed in the context in which they appear, the references to Donches’ and Slozer’s psychological traits would fairly be received by the intended audience as nothing more than opinionated assessments of a political opponent’s character and motivation.

Finally, the linking itself:

We also conclude that Appellee Holzhafer’s posting a link to the allegedly defamatory website with a “like” designation on her Facebook page, is not a republication of the content of the website sufficient to support a separate cause of action for defamation against her.

Side note: as someone who was recently referred to as "Tim Cushings" and "Tim Lushing" by Patrick Zarrelli and the Ft. Lauderdale police officer who had the misfortune of fielding the reputation mismanagement superstar's decidedly non-criminal "criminal complaint," I feel for the defendant whose linking/ liking was just officially declared non-defamatory. [Truth be told, Techdirt contributor Tim "Darknight" Geithner and site founder Mike Reznick don't exactly have it easy, either.]

This footnote appears on the first page of the opinion:

Ms. Holtzhafer noted in her motion for summary judgment that her name had been misspelled as “Holzhafer” throughout the proceedings. Because the rest of the record retains the “Holzhafer” spelling, we have done the same for the sake of consistency.

Filed Under: defamation, links

Pirate Party MEP Julia Reda: EU Preparing 'Frontal Attack On The Hyperlink'

from the propping-up-publishing-dinosaurs dept

Back in January of this year, we wrote about a remarkable report proposing a number of major changes to EU copyright law. Part of an extremely long-drawn out process that aims to update the current 2001 copyright directive, the document was written by the sole Pirate Party MEP in the European Parliament, Julia Reda. In the short time she's been an MEP -- she was only elected in 2014 -- she's emerged as the European Parliament's leading expert on copyright, which means it's always worth taking her warnings in this area very seriously. Earlier this year, Techdirt noted that Reda was worried about moves to restrict outdoor photography in the EU. Now she's picked up something even more disturbing after studying a draft version of the European Commission's imminent communication on copyright reform, which was leaked to the IPKat blog. According to her interpretation of this document:

the Commission is considering putting the simple act of linking to content under copyright protection. This idea flies in the face of both existing interpretation and spirit of the law as well as common sense. Each weblink would become a legal landmine and would allow press publishers to hold every single actor on the Internet liable.

Specifically:

the Commission bemoans a lack of clarity about which actions on the Internet need a permission and which ones do not: in legal terms, they put forward the question when something is an 'act of communication to the public'.

This is a reference to a ruling of the European Court of Justice in the Svensson case. While on one hand the judges established that the simple act of linking to publicly available content is no copyright infringement, because it does not reach a new public, a few questions were left open by this ruling, however: For example when exactly content can be seen as accessible by the public and how e.g. links surpassing paywalls are to be treated.

What worries Reda is that the European Commission may try to introduce ancillary copyright -- aka a "Google tax" -- in the EU under the guise of "clearing up" the questions left unanswered by the Svensson case. As she notes, and Techdirt has tracked for some time, every attempt to bring in ancillary copyright in Europe has been an abysmal failure. Bringing in an EU-wide Google tax in a misguided attempt to prop up publishers that still haven't figured out how to work with, rather than against, the Internet, would be disastrous. Maybe Reda is reading more into the leaked document than is warranted, but it's certainly worth being alert to this possibility when the European Commission releases its official version of the document on 9 December, and making it quite clear before then that the idea is a complete non-starter.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: ancillary copyright, copyright, eu, eu commission, julia reda, links