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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.
ok, so one party puts the pictures onto a public http server, then claims they did not want those pictures publicly available--- and the courts accepted this logic?
there are other ways besides putting them on a public http server, for those images to be shared with purchasing clients and other select audiences.
so, linking to files on a public http server is copyright infringement, if the copyright holder made them available, but is really an idiot and did not mean to?
because that is what i am taking away from this.
And who decides which jurisdiction it falls under, when the links are on a US site, but visible to the world?
They have already tried to force EU law on the entire internet with "right to be forgotten".
I wasn't clear, then. I was talking about linking to photos with a link that would embed the photo directly in the displayed page. The search results you describe would not do that, they'd just present a link that you have to follow.
If the search engine presented images directly in the search results page (in anything other than fair-use thumbnail form), then that would be copyright infringement.
I tried reading the ruling, I didn't quite understand whether or not they differentiated between presenting the copyright content to the user directly, or just linking to it, was considered copyright violation. I also read alot of text that seemed to be trying to narrow the scope of the infringement to willingly and knowingly linking to copyright content, but I didn't understand it all that well, and I don't know if a search engine could be said to knowingly link to anything in particular, it's just a machine that spits out data. Whereas a person who could be shown to have made an informed decision about the specific links they are authoring would be a different thing.
Is there anyone here who believes that this is not a completely stupid ruling?
Yes me, and I'll gladly explain it.
If you post a photo publicly you don't magically give up copyright. You still retain all rights to decide how people may use that photo. You post it on your website, it's still your photo. You embed it in a forum post, still your photo. It remains your photo at all times and in some cases you may provide someone else limited rights to use it. E.g. I upload it to a competition there will likely be a release form allowing them to use the photo on their website.
At no time does making something publicly available give a 3rd party ability to profit from it. Not on the web, not in newspaper publishing, advertising, and not since copyright was first introduced. There's a big difference between commercial use and non commercial use. Had the online newspaper linked to the Playboy site in context rather than directly providing links to photos the ruling would have gone differently. Were the site in question not a news site that makes money from the story about the images where they were publishing the images the ruling would have gone differently.
This sounds like a perfectly ordinary copyright ruling and as Slashdot's favourite meme goes "ON THE INTERNET" doesn't make something new.
The way I'm reading it is that guilt is based on knowledge that what you're doing is infringement, and that knowledge is presumed if you're doing it for profit.
However, you could still be guilty if you post a link with knowledge that its infringing even if you don't post it for profit.
I'm not sure how they're planning on determining knowledge of infringement. My guess is that its one of those semi-intentional loopholes where they just assume people won't take advantage of the situation because nobody who's big enough to matter would fail to have knowledge of their actions.
Of course TFS isn't as in-depth as the article (never mind the actual ruling) so maybe that's covered but just from what I see there's a huge potential for sites like /. and Reddit to get sued for something vague like "well you know your site could potentially host infringing links and that constitutes knowledge of infringement so you're liable."
The comments I read seemed to have missed the point that the link was to illegally posted, pre-publication photos. Not just any old link. Just sayin, puts a different angle on the story, although a little less clickbaity!
Not having read the article itself, I don't think anyone gives a flying hoot about the technical details like tags. They care about presentation, and there's a huge difference between "this other site has something cool, go look at it (and their ads)", and "here's something cool, stay here and look at it (and our ads)" In the latter case you're presenting the image/information on your page indistinguishable from content that you own.
Since we're talking about monetizing porn lets consider two porn sites:
- One hires models and creates all kinds of porn, which they pay for by monetizing page views (ads, etc)
- The other simply crawls the first's website and posts all the same porn images but with their own ads so that they're making all the money. But they don't actually copy the images since that would be a clear violation of copyright, instead they just embed the images from the site 1, so that site 1 not only isn't getting the opportunity to monetize page views generated by their content, but is also having to pay for the vast majority of bandwidth consumed by the viewers of site 2, which only has to deliver the comparatively tiny HTML files.
Does that really sound like something that should be allowed all above board and legal?
--- Most topics have many sides worth arguing, allow me to take one opposite you.