Linking Without Permission Violates Copyright, Rules EU Court (reuters.com)

BarbaraHudson writes: Reuters is reporting that Playboy has won a lawsuit against a Netherlands news site for linking to photos without permission: "'It is undisputed that GS Media (which owns GreenStijl) provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorized the publication of those photos on the internet,' the Luxembourg-based Court of Justice of the European Union (ECJ) said in a statement. 'When hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published.' The European Commission, the EU executive, is set next week to propose tougher rules on publishing copyrighted content, including a new exclusive right for news publishers to ask search engines like Google to pay to show snippets of their articles." Neil_Brown adds: The Court of Justice of the European Union has ruled today on whether posting, on a website, hyperlinks to copyright infringing works constitutes a "communication to the public" for the purposes of EU copyright law, an act which requires permission of the rights holder or other authorizing basis. The court held that, if the links are provided "without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website," the act of posting the hyperlink is not an infringement of copyright. However, if the links are providing in the pursuit of financial gain, the poster of such links is deemed to have known that they were infringing copyright, unless they can prove otherwise. The court has stated that those sites operating "for profit" are expected to have carried out the (impossible?) "necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead." The court does not clarify what is meant by "the pursuit of financial gain." If previous decisions are followed, any sites which host ads (Papasavvas), or perhaps even just accrue value to a brand (if the Advocate General's opinion in McFadden is followed), might be treated as operating for financial gain.

Comments

Well, I thought we had settled this

[cigawoot]

I guess other countries have to come to their own conclusions, but at least in the US this has been settled. If you don't want something available publicly, put authentication on it. This isn't hard guys.

You're linking to a party that is legally hosting the content, how is that infringement?

Re:Well, I thought we had settled this

[msauve]

"rights of copyright holders."

Uh, privileges. Copy"right" is not a natural right (like the right to self-defense), but a privilege granted by society to encourage creation of new works which benefit society. It's a very recent concept, going only back to the 17th/18th centuries.

Re:Well, I thought we had settled this

[mrvan]

As far as I understand the ruling, the infringement is *not* that GS linked to a site where it is legally hosted, but that they are linking to a site that hosts the pictures illegally, and the GS should have known that it was illegal (and you can be damn sure they knew that the linked site was not authorized by the copyright holder)

So, this case is more akin to pirate bay, which also just hosts links to places where stuff is hosted illegally; and has little to do with linking to something someone intended to distribute on the web.

Now, whether it should be legal to link to something you know is illegal is another matter. I for one am curious whether the court proceedings contain the hyperlink itself. While the central government is not liable for criminal persecution, it is liable for civil suits...

Re:Goodbye, World Wide Web.

[mark-t]

Free speech is not protected in the EU the same as it is in the USA.

Re:wait, i am sure i am missing something here..

[ebyrob]

A link isn't "instructions". It's just the address of where to find something.

What you're saying is like prosecuting me for prostitution if I tell you there's a brothel at 411 B street.

Re:Unity on Slashdot?

[cpt kangarooski]

You still retain all rights to decide how people may use that photo.

No, you still retain whatever rights you had. You certainly don't have complete authority to decide how other people may use it. So long as other people use it in a manner which doesn't infringe on your copyright, you can't control them at all, in fact.

At no time does making something publicly available give a 3rd party ability to profit from it.

It does for first sale. It does for fair use, if the particular use happens to qualify (commercial uses are fully able to be fair uses). There's a number of other exceptions that can apply as well. For example, if you release a record, other people can record and sell cover versions of it, and the whole intent of this was to allow third parties the ability to profit without the permission of the copyright holder.

This sounds like a perfectly ordinary copyright ruling

In fact, this is an asinine ruling. The court got it right before, when it found that linking to a file which had been put up with authorization was not infringing (which the exact thing you've been claiming was infringing, idiot). Here, the difference was that the underlying files had been put up in an infringing manner. But, rather than tell the rights holder to go after the actual wrong-doer who put them up to begin with, they decided to shift liability to third parties who were not responsible for the underlying infringement. It's very reminiscent of the stupid 'right to be forgotten' cases, in that it tries to sweep things under the carpet by imposing liability on the wrong parties just because they're more convenient.

Re:Goodbye, World Wide Web.

[dryeo]

Here in Canada, there was this law suite, http://www.michaelgeist.ca/200... , the kind of thing that would put the average person in prison for a long time. The slap on the wrist, https://torrentfreak.com/recor...
Must be nice to infringe for $6 billion and only have to pay $45 million, one hell of a good profit margin.