Hyperlinking Is Not Copyright Infringement, EU Court Rules

Freshly Exhumed writes "Does publishing a hyperlink to freely available content amount to an illegal communication to the public and therefore a breach of creator's copyrights under European law? After examining a case referred to it by Sweden's Court of Appeal, the Court of Justice of the European Union has ruled today that no, it does not. The Court found that 'In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.'" Reader Bart Smit points to the court's ruling.

Comments

TPB legit?

[xfizik]

Does this mean The Pirate Bay is legit now?

Re:TPB legit?

[Fluffeh]

A Very interesting flow-on understanding.

As they technically don't host any infringing materials, they shouldn't be anything but legit - though I think they get hit with something along the lines of "conspiracy to enable infrigement" or some such muck - in which case, this might not actually have any bearing.

Re:TPB legit?

[fuzzyfuzzyfungus]

Hasn't TPB's legal status always been 'We can't actually find any laws that they violate; but they just look so damn uppity and illegal that we couldn't possibly let them walk!'?

Re:TPB legit?

[suutar]

While they don't host any infringing materials, a core assumption of the ruling is that "the thing being pointed to" is in fact authorized (in this case, news stories). The ruling states that creating the link is a communication to the public, and as such if the thing linked to is infringing, such a communication could be itself infringing or at least contributory. I don't think this helps them.

Re:TPB legit?

[AK Marc]

That's the same as AllOfMP3. They were 100% legal, but shut down on pressure from the US to shut them down. No arrests. No charges. Just threats until they were shut down. The US believes in freedom of speech, unless they don't like it. hyperlinks are still illegal in the US, and taxpayer money was spent stiffling speech in other countries that didn't harm the US, but some businesses within the US asserted was harmful. Rights are available in the US only if you are rich enough to afford them.

Re:TPB legit?

[Anonymous Coward]

Hasn't TPB's legal status always been 'We can't actually find any laws that they violate; but they just look so damn uppity and illegal that we couldn't possibly let them walk!'?

Well. More or less.

The prosecutor Hakan Roswall did some research a couple of month before the raid and wrote a report were he came to the conclusion that what TPB did was legal.
Then the minister of justice Thosmas Bodstrom got a mail from the US government saying that they wanted TPB to get shut down so he called the prosecutor to his office and had a talk with him. (This is by the way illegal in Sweden, a minister isn't allowed to directly dictate what should happen. Regulations should be done through laws to make sure that they are enforced equally.)
Then the police investigated the whole thing. After this another interesting thing happened. The officer Jim Keyse who was leading the investigation took a vacation. During this vacation he was on Warner Brothers payroll.

I guess the reason the TPB-guys went to jail was more in the lines of coercion and bribes.

Re:TPB legit?

[cold fjord]

hyperlinks are still illegal in the US ... Rights are available in the US only if you are rich enough to afford them.

From the American Library Association

Hypertext Linking and Copyright Issues

As the cases above suggest, the law is not yet clear on what constitutes acceptable practice in linking to other people's Web sites. In most instances, however, it appears that linking in itself (whether deep linking or not) should not create legal problems unless there are extenuating circumstances. Setting up links to someone else's website is not the same thing as republishing information (the linking site does not actually store the linked site's information--it just directs the user to that information). Therefore, it seems unlikely that linking can reasonably be seen as copyright infringement absent those extenuating circumstances.

Re:TPB legit?

[fred911]

No they don't, they link to information that contains an infohash or to a file containing swarm and file information to a group that may or may not be sharing copy-written data, dependent upon the users location and fair use rights.

Lots of maybes there..

Re:TPB legit?

[3247]

IMO, you can argue either way:

• The Pirate Bay does not host any content but just links to content hosted elsewhere. It does not make the content available to a new public.
• The content hosted elsewhere is not readily accessible to the public without the torrents (or "deep" links). By hosting torrents (or "deep" links), the Pirate Bay enables the public to access the content. Thus, the Pirate Bay does make the content available to a new public.
• The Pirate Bay helps seeders to make the content available to the public. They are an accessory to the copyright infringement of others.

DO NOTE

[Gaygirlie]

This ruling only applies to copyrighted content that is legally and publicly available. Linking to content that is behind e.g. a paywall would constitute a copyright-infringement. Similarly, it doesn't rule that linking to publicly available, but unauthorized content would be legal, that is an entirely different matter.

Why is this ruling important, then? Well, it could be used as a stepping-stone for more in-depth ruling about linking to content, like e.g. the aforementioned unauthorized content. Similarly, many journalists, newspapers and whatnot have been sued in the recent past for copyright-infringement simply for linking to an article on another newspapers' website. Some companies are even trying to extort money from Google and other search-engines for the same thing, so now they could possibly use this ruling as a defense. Search-engines aren't journalists, that's true, but a new ruling could be based on this one and grant search-engines the same rights in hyperlinking.

Re:DO NOTE

[zotz]

This ruling only applies to copyrighted content that is legally and publicly available. Linking to content that is behind e.g. a paywall would constitute a copyright-infringement.

Wait, how can it be a problem to link to content *behind* a paywall. Either the person clicking the link will not be able to get to the link as the content is behind a paywall and they haven't paid, or, they have paid, have rights to the content, and can get to it by following the link. Is there some other possibility?

all the best,

drew

Re:DO NOTE

[AK Marc]

Many sites are using the law to enforce their poor security practices.

Re:DO NOTE

[0111 1110]

But intent to contribute to infringement on a mass scale should be

I disagree. Intent in and of itself should never be against the law. I could say, "Please everyone go out and download games and films and music and commit as much copyright infringement as possible." Maybe some people will be persuaded to do just that, but I have no direct control over such people. They are responsible for their own actions and decisions.

I could also tell people to consume illegal drugs and tell them on what street corner they can find some. None of that should be illegal. It's all communication, all speech. The mere imparting of information should never be against the law.

It is never in a civilization's best interest to prohibit the free flow of information. Although it may be in some individual's financial interest to do so. It is precisely for the benefit of a few rich and greedy people that such laws are created in the first place.

Re:DO NOTE

[Kjella]

In the same way you'd use the law if someone was in your house because you forgot to lock the door? The whole "Oh gee, I didn't realize I wasn't in public space anymore because nothing stopped me from going here so I'm totally innocent." doesn't work in real life, honestly why do you expect it to work online? Particularly when there's good reason to believe the person knew he was behind the front door that was supposed to keep him out and he's busy cleaning the place out of valuables.

Re:

[jakesyl]

Search is hyperlinking..

Re:Internet 101

[fuzzyfuzzyfungus]

The internet before search depended on hyperlinking.

Even that aside, 'hyperlinking' is pretty much an improved flavor of citation. If you are going to ban 'hyperlinks to illegal material' you are this close to just banning the mere mention of illegal material; except easier to sell because there are scary computer words involved.

Whether you see this as ironic, or as a continuation of copyright's original purpose, it is simply a matter of fact that the defenders of this sort of 'property' are learning that doing what they want requires rolling back all sorts of long-held rights. Worse, they seem OK with this.

Re:

[AK Marc]

So any search result that doesn't hotlink the results isn't a search?

No, this case is linking to the rightful owner

[raymorris]

No, it's not similar. In this case, the plaintiff complained that someone linked to them, apparently within a iframe or something. Nobody linked to unlawful or "pirated" material. The (silly) claim was that linking to Slashdot would violate Slashdot's copy rights.

TBP llinks to unlawful material, and exists primarily for the purpose of assisting in the unlawful distribution of material. They are therefore committing "contributory infringement" - they are contributing to a direct infringement. In the instant case, there is no direct infringement for anyone to contribute to.

Re:Wait a second...

[Anonymous Coward]

Didn't I read the opposite just yesterday?

No, that case was different since he copied the files and shared them from an own server. Had he linked to the originals he would have been safe according to this ruling.