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

Goodbye, World Wide Web.

[Anonymous Coward]

Farewell. We hardly knew ye.

Re:Goodbye, World Wide Web.

[epyT-R]

Linking to and embedding data from other documents is the whole reason it's described as a web in the first place.

Re:Goodbye, World Wide Web.

[Anonymous Coward]

You're blurring the line between content and pointers to said content.

COPYright applies to copying the content. Linking to it is free speech.

Re:Goodbye, World Wide Web.

[ragahast]

What's so bad about that?

Ever use a search engine (in particular image searching)?

A string like "https://cdn0.vox-cdn.com/thumbor/JmVq0i-tBJiPxGt5XOrDYDO6lyA=/0x16:1300x883/1280x854/cdn0.vox-cdn.com/uploads/chorus_image/image/48728355/playboy_march_16_cover_wide.0.0.jpg" is just a *fact* and should not be copyrightable. It simply *is not* the information that has been copyrighted.

Re:Goodbye, World Wide Web.

[mark-t]

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

Re:Goodbye, World Wide Web.

[EvilSS]

That page you linked to with the photo is also copyrighted though, just by existing. What's to stop the owner of the target link from suing over that copyright? This ruling basically says that any for profit entity would have to not only get permission from owner of the linked site, but also validate that that entity has the rights to publish the content you are linking to them for. It's insane.

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."

Re:Goodbye, World Wide Web.

[sir-gold]

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".

Re:Goodbye, World Wide Web.

[Anonymous Coward]

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.

An <img> tag is just a link you have to follow, too. The user agent may or may not do that for you. It is, after all, the agent acting on behalf of the user.

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.

No, it wouldn't. And that is precisely why this EU ruling is pants-on-head retarded. And everyone involved with and/or favoring this decision this is also pants-on-head retarded. Sue me for libel, bitches. I dare you.

Links are not the original work. Period. Facts trump wishes. Deal with it.

Re:Goodbye, World Wide Web.

[Applehu Akbar]

Wasn't this whole "deep linking" battle fought once before?

Re:Goodbye, World Wide Web.

[bigfinger76]

There's a world of difference in having "href=http://blahblahb.jpg" and "img src=http://labhaldfad.jpg".

For starters, they appear to be completely different images.

Re:Goodbye, World Wide Web.

[JaredOfEuropa]

The claim holds true. Neither the EU itself nor its organs such as the Human Rights commission, nor many of its member states like my own home country, treat free speech in the same way as the US do. Proposals to make criticism of ("insulting") religion punishable have been floated in Brussels. They haven't passed, but the fact that these proposals have even been raised and considered instead of the submitters being ran out of town on a rail in tar and feathers is telling. My own country still had laws against blasphemy and lese majeste; they are hardly ever enforced or even invoked, but they are there. Free speech in my country boils down to there being no censorship prior to publication. Post publication they can still prosecute you, and there's a whole bunch of stuff you're not allowed to say according to the law.

Re:Goodbye, World Wide Web.

[Altrag]

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."

Re:Goodbye, World Wide Web.

[Immerman]

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?

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.

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]

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

It isn't. It's no different than saying "go to the library to read this book" (although the action of going to the library becomes more automatic, since it's done for the user by the browser). The "linker" isn't involved in either delivering or receiving the content, and they're not a party to any copying. It's entirely up to the content provider if they want to deliver content which is linked from off-site.

This is just a case of a content provider being lazy by not going through the work of denying content linked from off-site, and trying to push their responsibility onto someone else.

The decision is a step towards further Balkanization of the web, which is based on hyperlinks.

Re:Well, I thought we had settled this

[Bryan Ischo]

I don't see how this burden to search companies is a reason to weaken the rights of copyright holders.

Image thumbnails in search results would probably be covered under fair use no?

Frankly I'm surprised that copyright wasn't already enforced this way. Documents viewed on the world wide web are these ethereal things that are composed on the fly by client browser software as instructed by web server software. If the web server software instructs the client software to present a document which mixes non-copyright-infringing and copyright-infringing content, it seems eminently reasonable to me that this would be copyright infringement.

What if I distributed a bunch of mini printing presses that, when you pressed a button, produced a perfect copy of this year's best selling novel? Sure, I didn't actually distribute the novel, but I enabled a mechanism whereby the user, when using my device as intended, would end up with a copyright infringing document.

I think of the web browser in the same way. The servers tell it what to display. Therefore, if they tell it to display something that violates copyright, then the server has violated copyright.

Here's how I would make the rules if I could:

- Publishing web pages with links to copyrighted content where those links cause the display of the copyrighted content inline in the linking document, would violate copyright
- Publishing web pages with links to copyrighted content where those links do not cause the display of the copyrighted content inline in the linking document, but instead merely lead the user to the content, would not violate copyright

Analog: you can publish instructions on where to go to listen to a copyrighted song. You cannot publish a document which plays the copyrighted song to the user.

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...

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

[Anonymous Coward]

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.

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.

And search engines

[phorm]

are now completely f****'ed....

Re:It's not the lack of permission that matters

[Rockoon]

The problem was that they knowingly linked to copyright infringing material

No they didnt. They linked to a file hosting service that had links to the copyrighted material.

You are missing the part where 3 different parties are involved.

(A) The owners of the copyright
(B) The site hosting and linking to the content
(C) The site linking to (B)'s web page that links to and hosts the content.

This can be translated into: "A law was broken, and god damn it someone.. anyone... must pay!"

Unity on Slashdot?

[Trogre]

I'm genuinely curious:

Is there anyone here who believes that this is not a completely stupid ruling?

If so, please explain to the rest of us how pointing to something that is already publicly available (ie published on a web page) could possibly be a violation of copyright.

Re:Unity on Slashdot?

[thegarbz]

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.

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.

Copy rights

[gatfirls]

It would seem copy has more rights than people.

RTFA - photos were illegally posted

[Zoxed]

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!