Slashdot Mirror
Dutch Court Rules Hyperlinks Can Constitute Infringement
Ubi_NL writes "In yesterday's ruling of Playboy (via publisher Sanoma) vs Dutch blog Geenstijl, the court ruled that hyperlinking to copyrighted material was itself infringement of copyright. The court ordered the blog to remove all links to the infringing links (court ruling in Dutch). How this ruling fits into the supreme court ruling that hyperlinks cannot by themselves infringe copyright is still to be discussed, possibly in an appeal."
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.
Taking the three criteria and the circumstances of this specific case into account, the court concludes that GeenStijl.nl has infringed on Sanomas copyrights by publishing the URL to the leaked nude pictures of Britt Dekker.
Unfortunately it doesn't seem that new, there's also the judge Chris Hensen who happened to be running a commercial anti-piracy together with the council for the plaintif while deciding that links to TPB should be blocked.
Frankly I suspect it's rare with members of the various parts of the judicial system in the field of IP who do not have significant financial interest in enforcing IP. Whether it's revolving door interest or more blatant abuses the field of government granted monopolies has always been lucrative for those on the inside, which probably makes the field very attractive for those with slightly lower ideals than what could be expected in a judiciary.
This not a simple case of security through obscurity, though. If it were, then all physical cylinder locks or password security could also be considered "security through obscurity". After all, the security only lies in not publishing the exact configuration of bumps on the key required to open the lock, or the characters making up the password.
The point in this case is that the public had no means of guessing or finding the URL other than trying every possible combination. GeenStijl provided the public with the right combination (the key or password if you will) and this is where their publication further infringes on the copyright.
the cookie deal is european wide legislation. each nation is free to implement it with their own law provided it at least satisfies the requirements in the european law.
Copyright law protects Security By Obscurity. So the judge was correct in this case.
In order in infringe on copyright law, you'll have to make a copied work public. So, as long as you don't publish a copied work (i.e. keeping it obscure), it's not an infringement. This, for instance, allows you to make a private copy of a copyrighted work without infringing on copyright law.
In this case, a private copy was made. Nobody knew where to find the copy, except for the person who placed the copy online. So, while the copy was on the internet, it wasn't public. Geenstijl made the copy public by making the URL known to the general public. Therefore Geenstijl infringed on dutch copyright law.
This is your sig. There are thousands more, but this one is yours.
I think this is an extremely interesting case. My first reaction was a typical knee-jerk don't touch my free hyperlinking speech! However, this goes further than that.
What has happened here, is that a URL was used that was effectively just as secure as one secured by a username/password. Only difference is that the username/password (or in this case another secret key, which is a mere technicality) were in the URL itself. The reasoning of the judge was that by publishing this secret, Geenstijl has effectively published the material that was protected by the secret. I think that's not that odd a decision. However, it is a very dangerous one.
What this boils down to, is whether the location of credentials should matter. One thing we all agree on, is that username and password passed in HTTP headers should be considered confidential. Using or publishing them without permission is most certainly illegal in most countries. Should a secret key or credentials that are part of or can technically be made part of a URL be treated in the same way? I think they should in obvious cases; for example using or publishing an url like http://slashdot.org/login?user=zmooc&pass=yo without my permission would probably be illegal. How obviously secret does an URL have to be for publishing it to be illegal? And who is to decide on that?
That's what this case is about or at least should be about.
0x or or snor perron?!
I see this from a different point of view. There are two distinct things I'd consider here, the link itself (separate from the content it takes you to), and the act of directing you to content owned by someone else.
Most of us have had exposure to people trying to get links taken down. What has to be considered here is what they're trying to claim for protection. The actual provider of the content is not the link. It's what's at the other end of the link, which in these cases is the person claiming to be wronged. I don't see them having any right to claim infringement of content because they alone are the ones providing it. I don't see any difference between this and say for example, my posting a note on a telephone pole saying "go to SuperScreen Theatre and watch Xmen 7". I'm not infringing on their ownership of anything xmen, I'm merely informing people that you're offering it. There's no fundamental difference in what I have done if XMen 7 is a regular paid show or a free-of-charge sneak preview that SuperScreen actually only informed a small group of people about. The difference there being one showing was public or charge normal, and the other was a "free if you know about it" kind of thing. But there was no difference in my posting of the notice. The only change was on the provider's end, and why should that change the legality of what *I* did?
So at least how I'm seeing it, the providing of the link itself should be legal, and that's what most people here will also be assuming.
But then we have to address the url itself. If it contains a secret parameter such as a unique ID, login, etc, is it legal to give that way? And I mean in any form, not just an easily clickable hyperlink. You can't call it a trade secret because you're sending it out to at least a subset of the public. It's a fact so you can't copyright it. An unauthorized person using it could be charged with unauthorized access (using credentials that were "stolen") but the person providing the link isn't the user so that doesn't apply to them. (and then you get into the IMHO completely BS concept of "contributing to infringement" etc) I don't see any angle to view this as illegal.
I think this is just some frustration on the part of the providers. They had a system in place that was assisting with their revenue, was convenient for them and their customers, and was mostly under their control. A bit like mailing out coupons to some of your good customers. But then they decided to change how their offer was being sent out, say for example by emailing their customers links to the coupon to download and print out. But now someone has posted the url to that coupon so it'd available to a lot of others. So others are going there and downloading and printing the coupon too, which is not what the provider intended or wants to have happen. So they're looking for a way to call what the poster is doing is "illegal" - not because it IS illegal, but merely because they want it stopped. The provider has no real ground to stand on, other than "I don't like it, I didn't intend for that to happen." They made a change to make things more convenient for themselves and their customers, and in doing so they gave up a bit of control over who they were giving things away to. They switched from using a secured private distribution method to using an insecure public distribution method. They continue to claim "privacy" but they themselves made it public. It's no different than my opening the curtains at my house and then getting upset when people look in my window. What I want doesn't have any bearing on what you see, I'm the one that made it available and it's my fault that you were able to see it. I have no right to demand you look the other way.
I work for the Department of Redundancy Department.
COP: Have you seen anyone here selling counterfeit Rolex?
...
Pedestrian: Yeah I saw a guy holding a suitcase of watches just five minutes ago.
COP: Can you point in his direction?
(Pedestrian points)
COP: You are under arrest for copyright infringement!
Judge: GUILTY!
If we follow your process through to the logical conclusion, then it would imply that the person linking to the content intended to download every linked object, which is patently ridiculous. The person creating the links doesn't necessarily intend to do anything with the links other than to profit from site visits via ads or whatnot.
Note that in both of your examples, you are the one linking to and accessing the IP in question.
This is a dangerous judgement, make no mistake. It opens up any search engine which frankly is an algorithm and not self aware. These just scrape sites and produce the links. There is no 'intent' there.
Your naivete is endearing, or at least it would be if there wasn't so much needless BS for people to suffer.
You may disagree - but yes, the system is inherently corrupt, designed to have everyone clawing their way over each other to the top of the heap. Nothing 'conspiratorial', just normal, everyday nature at work. All other systems work precisely the same way. It is universal. It is also a scientifically proven fact that authority WILL be abused. Please, don't try to tell us it is not being so abused in this case, like so many others. That would be absurd. Your society feels that this level of abuse is acceptable. But that doesn't make it any less abusive. If this were 1820, would you be arguing for the property rights of the slave owner? Would you not condemn people if you witness them abusing an animal?
This little 'IP' business must be turned away completely. You seem to believe it's helpful to society, but it's only because it's convenient for you to believe propaganda at this point, for whatever reason.
You teach 'ethics' through guidance and example, not by dictate and prohibition. And you can foment nothing but disrespect when you don't apply the rules evenly, just like a coat of paint.
“He’s not deformed, he’s just drunk!”