Barrett Brown Signs Plea Deal

from the of-course dept

Late yesterday, a superseding indictment was filed in Barrett Brown's case, knocking the charges down to just two, with the main one being that he somehow offered assistance to Jeremy Hammond, who had taken an earlier plea deal for the Stratfor hack. As many people suggested, this new indictment was almost certainly because of a plea deal, which has now been confirmed, as the court also granted a motion to seal the plea deal.

The case against Brown has been something of a travesty from the beginning, as Brown was clearly never involved in the hack, but was involved in reporting on the hack and then involved in some rather misguided public ranting in which he threatened the feds if they came after him. As it became clear that the key part of the government's case hinged on the idea that copying and pasting a link found elsewhere was tantamount to hackking, the DOJ was forced to back down and dismiss most of the charges. Brown has been in jail for many months already, and it's likely that the plea deal will keep him in for a short while longer. Accepting a plea deal is pretty standard in these situations. If you're not familiar with how these things go down, when the DOJ is embarrassed -- as they clearly were in this case -- they almost always pressure defendants into agreeing to some minor plea deal, to save face for themselves. It takes the "risk" away from the defendant, and generally speeds up the process. It's the same sort of thing that happened to Thomas Drake. As we've said before, if you think plea deals like this are an actual admission of guilt, we suggest you watch the documentary Better This World, which shows you how the DOJ deals with cases like this, where they will do basically anything to get people to plead guilty.

Filed Under: barrett brown, doj, jeremy hammond, journalism, linking, plea deal, stratfor hack

Feds Dismiss Charges Against Barrett Brown For Linking After Realizing They Had No Case

from the and-it-shouldn't-be dept

Well, well, well. We were about to put up the post below, describing the arguments that Barrett Brown's lawyers filed about why the criminal charges against him for sharing a link (which they claimed was trafficking in stolen credit card details) were completely bogus... and it appears that the DOJ itself was convinced. Just hours after Brown's lawyers filed their comprehensive argument, the DOJ has filed a motion to dismiss the criminal charges that stem from the cutting and pasting of the link. The other charges, concerning threatening acts (described below) and "obstruction of justice" (for hiding his laptop in a cabinet) remain, meaning that he is still facing significant jail time. But the core charge, concerning cutting and pasting a link, is now being dismissed. Of course, it's still a travesty that the DOJ ever included that in the indictment in the first place.

Our original post, about Brown's now obsolete filing is below:

---

We've covered the deeply troubling case of Barrett Brown before. The DOJ has been working overtime to lock up Brown, whose main "crime" appears to have been taking a link that was publicly available that pointed to documents taken by members of Anonymous from the consulting/media company Stratfor, and pasting that link into an online chat. Brown did not hack Stratfor. Instead, he was working on his ongoing project to dig into the various documents leaked via Anonymous for journalistic purposes. While Brown's case was initially messy due to some ill-advised public statements by Brown (in which he ranted publicly about law enforcement, to the point of threatening to shoot those who came after him), when you dig into the fundamentals of the case, there's not much there other than taking that publicly available link and pasting it into a chat room. The government is claiming that since the documents from Stratfor included credit card info, Brown's copy/paste was the equivalent of trafficking in stolen credit cards. Think about that for a second.

Brown's legal team has now filed a motion asking the court to dismiss the key claims concerning the copy pasting of the link, which underpin pretty much the entire case. This is an issue that is important to anyone who believes both in the freedom of the press as well as the idea that merely sharing a link shouldn't make one liable (especially criminally liable) for what's in the content that's being linked to. The filing makes three basic arguments.

First, it notes that merely sharing a link clearly does not meet the standard of a criminal act under the law that Brown is being charged under, with the key question being whether merely pasting a link is "transferring" ... "authentication features."

As a matter of pleading, the Indictment is fatally flawed because (1) it fails to allege an essential element—“the transfer of authentication features”—altogether, and (2) it fails to allege that Mr. Brown “transferred” anything other than a hyperlink. Instead, the government claims that Mr. Brown violated the statute by republishing a (publicly available) hyperlink which caused a (publicly available) file to be made “available to others online.” However, as shown in POINT I, the government’s theory of the case fails to satisfy any valid construction of the charging statutes.

Second, the filing notes that even if the court actually believes that merely copying and pasting a publicly available link is "the transfer of authentication features" under the law, then that law clearly violates the First Amendment:

First, Mr. Brown is alleged to have engaged in pure speech, not merely conduct with expressive elements. The act of republishing a hyperlink is unquestionably an act of pure communication and expression. Thus, applying Section 1028 to Mr. Brown’s republication of a hyperlink is a substantial burden on his right to free speech. Pure speech also warrants the highest protection, and laws burdening pure speech must face heightened scrutiny. Only a “‘need... of the highest order’” can justify “a regulation of pure speech.”....

Second, Mr. Brown’s speech (by republishing the hyperlink) addressed political issues—namely the uncovering of improprieties within the private intelligence contracting industry. As such, it is entitled to the First Amendment’s highest protection. “[L]awful political speech [is] at the core of what the First Amendment is designed to protect.” ....

Third, Mr. Brown’s speech (by republishing the hyperlink) was part of his routine press activity: gathering, disseminating and publishing information about the Stratfor hack and, more generally, private intelligence contractors.

If the court still isn't convinced, Brown's lawyers offer up a third argument, noting that even if copying and pasting the link is covered by the specific law and if pasting a link isn't protected by the First Amendment (as it clearly should be), then Brown's lawyers point out that the law in question, 18 USC 1028 is "unconstitutionally vague on their face" and "unconstitutionally overbroad and chills speech in violation of the First Amendment."

This is going to be an important case to follow. In the past whenever we've covered Brown, we've heard from some people who had personal run-ins with Brown and didn't like him, as if that means that his legal case isn't important and the legal issues should be overlooked. We disagree. No matter what people think of Brown, the key legal issues in this case are vitally important in an era when federal prosecutors are piling on excessive charges against people they don't like and, even worse, when there has been a ratcheting up of rhetoric against journalists reporting on leaked information. Some of the most important cases you will see involve people that you probably wouldn't like very much in person -- but that matters little when it comes to the importance of the underlying legal points and the wider impact they may have. In fact, it makes the issues more important, because once the precedent is set, they can be used against people you do like in the future.

Filed Under: anonymous, barrett brown, doj, free speech, linking
Companies: stratfor

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.

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

Filed Under: european union, linking

That Was Fast: Prince Has Already Filed To Dismiss Ridiculous Lawsuit Against 22 Fans

from the prince-world dept

Just a couple days ago, we wrote about the ridiculously laughable lawsuit that Prince had filed against 22 fans for merely linking to bootlegs. Beyond the stupidity of suing fans, suing over linking and suing over bootlegs, we pointed out a variety of legal problems with the lawsuit, including the fact that Prince's lawyer seemed confused about how copyright damages actually work, the nature of direct vs. indirect copyright infringement and a few other issues. So, perhaps it shouldn't be that surprising that it took just a few days for Prince's lawyers to file to dismiss the lawsuit. They're doing so without prejudice, which is standard, but does mean they could try to sue again at a later date, should Prince wake up at 3am in January in Minnesota and decide that, rather than needing a camel, he wants to sue some of his biggest fans all over again.

Filed Under: bootlegs, fans, linking, prince, prince world

Goldieblox May Be Right About Fair Use, But Wrong About Claiming You Need A License To Link To Its Site

from the hypocrites dept

We've already written about the dispute between Goldieblox and the Beastie Boys not once, but twice, coming down strongly on the side of Goldieblox in this dispute. However, as noted in Jeff Roberts' coverage of the case over at Gigaom, it appears that Goldieblox might want to take a closer look at their own terms of service, which makes some absolutely ridiculous and laughable claims about how you can't link to their website: If you can't see that, the key part says:

LINKS BY YOU TO THE WEBSITE. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to GoldieBlox, (b) the links and the content on your website do not suggest any affiliation with GoldieBlox or cause any other confusion, and (c) the links and the content on your website do not portray GoldieBlox or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to GoldieBlox. GoldieBlox reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

Except, there's no legal basis for this whatsoever. I can link to them here, as I have, and say things that they disagree with, and they can scream and holler about them "revoking" their license to link and it would mean absolutely nothing. Because just as you don't need a license to create a parody song, you don't need a license to link to someone's website.

Overly demanding a license or permission for things is a big problem. Goldieblox should be supported for making it clear you don't need a license for parody, but it should be called out for pretending a license is needed for linking.

Filed Under: copyright, fair use, linking, terms of use
Companies: goldieblox

European Copyright Society Says Hyperlinks (And Framing) Should Not Be Infringing

from the good-for-them dept

The Spanish Pirate Party points us to a recently released opinion by the European Copyright Society concerning whether or not hyperlinks themselves may be infringing. The paper was written by 19 European legal scholars, concerning a specific case before the European Court of Justice, Case C-466/12 Svensson, which is yet another case of a news aggregator being sued for daring to link its customers to relevant articles. The reporter, Mr. Svensson, argues that even though the aggregator, Retriever, only posted links, they were "making available" the work. The European Copyright Society is not buying it, noting that hyperlinking is much more akin to a footnote:

Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.

This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):

“Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
...
Hyperlinks ... share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”

Basically, since a hyperlink just points you somewhere it's not transmitting the work, there's no copyright violation. The paper goes into significantly more detail, citing case law around the globe to support its position. It also warns the court that while this may seem like a simple issue, it's vitally important to the health of the internet:

The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.

Also of note, is that the opinion paper says that the same reasoning applies equally to "framing." This is a bit more controversial, but we've always pointed out that embedding and framing are no different than linking, since they're merely pointing a computer from where to pull information, and the EU Copyright Society agrees:

In principle, we are unable to see why “framing” as it is often called, should be treated any differently for copyright purposes from hyperlinking.

[...]

In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.

They do say that framing may give rise to other forms of liability, including unfair competition or moral rights, but that is separate from the copyright question before the court.

Considering how much pushback there has been recently in terms of companies arguing that links are infringing, this is nice to see. Here in the US, there's a similar case going on between the Associated Press and clipping service Meltwater. Hopefully common sense wins the day in both cases, and mere linking or framing is not seen as copyright infringement.

Filed Under: copyright, europe, framing, linking

Dear HuffPo: Feel Free To Send Techdirt Traffic

from the plus,-google-should-fix-its-seo dept

Let me kick this of by saying that I'm a big fan of The Verge, which has quickly become a top tech site for many. I don't always agree with what's written there (I don't always agree with what's written anywhere!), but it tends to regularly produce high quality work. The Verge is at its best with its long form pieces that combine well-written narrative with great design and layout. A recent example of this was with its excellent history of the American arcade. That story got passed around a bunch -- I know I had it sent to me at least half a dozen times. It's a wonderful story if you haven't read it.

It was then interesting to see The Verge's Editor-in-Chief, Joshua Topolsky, take to Twitter to demand that Huffington Post remove a snippet and link to that story.

Formal public request. @bbosker and @huffingtonpost, please remove the content you've scraped from us. huffingtonpost.com/2013/01/21/the… Seriously.

— Joshua Topolsky (@joshuatopolsky) January 23, 2013

You can see the Huffington Post version here. I'm having a very hard time figuring out what Topolsky is complaining about. The HuffPo piece quotes the first paragraph and the first paragraph only and then has a prominent link to the full story at The Verge. The original Verge article is 47 paragraphs long -- plus amazing graphics, design and video. So... I'm sort of at a loss as to how anyone might think that the HuffPo snippet and link takes away from the original. HuffPo's Bianca Bosker shot back something along those lines, noting that it was just a short snippet and drove traffic to The Verge:

@joshuatopolsky that was a story we linked out to on huffpost to drive traffic/readers to The Verge, which it looks like it did 1/2

— Bianca Bosker (@bbosker) January 23, 2013

In response Topolsky explained more that his problem with it was that it hurt The Verge's SEO (search engine optimization) on such stories.

What's most egregious about this @huffingtonpost scrape is its theft of our SEO on title and text. Google "death of the american arcade"

— Joshua Topolsky (@joshuatopolsky) January 23, 2013

But I'm at a complete loss as to how that's "egregious" on the part of the Huffington Post. It would appear that this is solely an issue with the way Google's ranking system works. I've long thought that this was a weakness of Google. We've had many sites that scrape our content in its entirety -- and, as we've noted countless times -- we're absolutely fine with that. But I am often surprised at how often we see other sources listed above ours in Google. But that's always struck us as a problem with Google (and with how Google views us), rather than anything worth pinning the blame on the sites that copied our content.

In the meantime, though, having discovered in the past just how much traffic a link from HuffPo can drive, we'd like to offer up Techdirt as a site that HuffPo can freely link to whenever they want. We won't complain to them. Though, if Google ranks them higher in search, we might complain to Google...

Filed Under: aggregating, huffington post, linking, seo, the verge, traffic

Embedding And Linking Deemed Infringing In The Netherlands; Downloading... Not So Much

from the odd-choices dept

Here are two copyright stories coming out of the Netherlands, one good and one bad. The first is that the Dutch government has rejected an effort to make downloading copyrighted works for personal use infringement. There is, of course, an existing "you must be a criminal" tax on blank media there, which is part of the reason why such downloads are considered okay. Of course, now we only have to wonder how long it will be until the Netherlands shows up on the US's Special 301 report for "naughty" countries who don't follow Hollywood's extreme maximalist positions.

Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.

Filed Under: downloading, embedding, infringement, linking, netherlands

Google Asks Germans To Protest 'Pay To Link' Proposal As It Comes Close To Becoming Law

from the dumb-proposals dept

For a few years now, we've been following attempts in Germany -- mainly driven by newspaper publishers -- to create a bizarre new copyright-like right (specifically a "neighbor right") in "linking" such that a site like Google would have to pay sites that it links to. The bizarre and nonsensical argument is that because a site like Google makes some of its money by linking to sites, those sites "deserve" part of the money. This is problematic for a long list of reasons, not the least of which is it's fundamentally backwards economically. If sites like Google are making money from directing people to other sites, they're making money because they provide a valuable service in helping people find the content, not because of the content itself. It's up to the sites themselves to figure out how to monetize the traffic -- not to run to the government to force others to pay. And, if you think this is just a Google issue, you're wrong. Among the proposals was one that would impact many others, including people posting links on blogs, Facebook, Twitter and other sites.

The final proposal would be wide reaching in impact, and make it ridiculous to run a search engine or any kind of aggregator in Germany:

The new section, if introduced, would provide the "producer of news materials" the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes," according to an unofficial translation of the German Government's proposals.

Others would be permitted to provide "public access" to the publishers' material unless those providing that access are "commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion". News publishers' right to control the commercial exploitation of their work in this regard would extend for a year after publication. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".

The German government is set to take up the issue on Thursday and Google has realized that maybe it should let folks in Germany know that this proposal would seriously cut into their internet services. As Google accurately notes, if the law passes it will mean "higher costs, less information and massive legal uncertainty." That's what happens when you insist that content providers who fail to monetize traffic somehow "deserve" money from a third party that is helping people find them.

The logic behind this bill makes no sense. Do we require that GPS service providers pay stores for directing people to where they're located? Of course not. The very concept is ludicrous. Yet that's exactly what this bill is doing in Germany.

Most ridiculous of all: if publishers don't like being in Google's results, they can already opt-out. So if this was really "piracy" as the publishers claim, they have a solution already at their disposal. But this isn't about piracy at all, of course. It's about publishers who haven't been able to adapt seeing Google make lots of money and getting jealous. So they're demanding a cut of the money. It's a sad statement on the nature of both publishers and German copyright law that this proposal is even being seriously considered.

Filed Under: copyright, germany, linking, neighboring rights, pay to link, search engines
Companies: google

Dutch Court Says Linking Can Be A Form of Copyright Infringement

from the seems-a-bit-extreme dept

A somewhat troubling ruling has come out of a court in the Netherlands, where it has found that linking to infringing content could be infringing itself, if certain conditions are met (which they were in this case). The key part here was that the site that was sued was linking to material first, and thus revealing it to the world... even though it does not appear that the site in question uploaded or hosted the content. This is troubling for a variety of reasons which we'll get to, but first the background of the case.

A Dutch television presenter, Britt Dekker, did a nude photoshoot for Playboy, and a bunch of the images leaked ahead of the December, 2011 release of the magazine. A website called GeenStijl.nl had a story about it, and included a link to a zip file that contained all the images that had been uploaded to the cyberlocker FileFactory.com. Playboy had the file taken down from FileFactory, and GeenStijl linked again to the same images on Imageshack. And from there a game of whac-a-mole followed with Playboy having the images taken down, but the images quickly spread all over the place. For what it's worth, at the time, there was a lot of speculation that Playboy itself had leaked the images to build up buzz.

Either way, GeenStijl got sued for copyright infringement -- and they responded by pointing out that they just linked to the content. The court put forth a three pronged test, and found that GeenStijl, even with just links, met the criteria for infringement. As explained on the FutureOfCopyright site (linked above):

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

• Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
• New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
• Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

By my reading, all three of the prongs of the test, as presented here, are somewhat problematic. The reasoning on the first prong -- intervention -- just doesn't seem right. The claim that "the public wouldn't have had access" but for the link on GeenStijl isn't true. They did have access since the files were already on the cyberlocker. GeenStijl perhaps made it a lot more widely known, but at this point you're arguing about whether or not it's legal to make a factual statement. Did the photos exist on a cyberlocker? Yes. Saying so shouldn't be infringing.

The second prong really just seems like a repeat of the first prong. The entire argument that seems to have convinced the court is that GeenStijl was the first to link to the content. Under US law you face much more liability for leaking "pre-release" material, so you could argue that this is a similar situation in the Netherlands, but again, it's not GeenStijl "leaking" the material. They're acting as a journalist, telling people such content exists.

The final prong is completely useless. Basically it seems to say that because the article was popular, that's evidence for infringement. I can't see how that makes any sense at all. If GeenStijl was, for example, selling access to the images, then there's a much stronger argument of "profit." But just saying that because the site got a lot of traffic, they profited seems like a dangerous precedent.

The Future of Copyright article mentions the cases against FTD as being similar, but I'm not sure that's true. While a lower court had found FTD guilty for linking, on appeal it was said that links weren't the problem, it was the promoting of uploads that got FTD in trouble.

Either way, it's of little surprise that Tim Kuik, the head of the Dutch anti-piracy group BREIN, is cheering on this ruling, suggesting that this case will be useful in other efforts to go after sites that link to infringing content. Of course, given the specific nature of the ruling, including how much of it seemed to rely on the fact that GeenStijl was the first to somehow create an audience for these images, I do wonder if it really has that much value for BREIN in those types of cases. Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific.

It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications. But the highly specific details associated with the ruling, especially the reliance on being the first to publish the link, at least suggests that this has limited value as a wider precedent.

Filed Under: copyright, infringement, linking, netherlands, playboy, tim kuik
Companies: brein, geenstijl, playboy