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European court says linking to illegal content is copyright infringement
- cm3 10y agoHow can this work? A link is just a reference to a mutable destination and there's no way to guarantee that what's pointed at stays legal after the link was put up. It can change at any time and turn into something illegal, even though the original content was not. I do get the intent here, but it absolutely misses the point. Edit: The ruling acknowledges the target is mutable, but it also says that the poster of a link on a page that's for-profit must check the target content. However, I cannot find anything how one should prove it was legal at time of linking. The only sensible thing I can find is that once notified a link has to be taken down. Did I miss something?
- kyriakos 10y agoIn absolute terms your argument is valid but I doubt they will use it against a situation where a single link got hijacked. Its more to have the legal framework to go after sites who systematically (and intentionally) link to pirated content.
- forgetsusername 10y ago>but I doubt they will use it against a situation Until that one case where they do, and you're on the other end of it. Hoping for a sympathetic reading of the law is not recommended.
- seszett 10y agoHave you read the decision[0] though? It specifically addresses this. > it is to be determined whether those 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 or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed. [0]http://curia.europa.eu/juris/document/document.jsf?text=&docid=183124&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=755998 http://curia.europa.eu/juris/document/document.jsf?text=&doc...
- deleted 10y ago[deleted]
- morganvachon 10y agoI realize this is the EU, but if this ruling were to happen in the US, sites like cracked.com who link to copyright-encumbered content all the time (mostly Youtube clips of movies and TV shows, often produced by highly litigious houses like Disney/Marvel Studios) and make a ton of money from ads, would quickly be sued out of existence.
- seszett 10y agoWould that be a bad thing though? Those websites are purposefully acting in a way that doesn't respect the copyright of the owner of the content they want to show. That they do this through a third-party host shouldn't be that important.
- shiven 10y agoYes. As a strong opinion holder in the copyleft philosophy of any and all content, I feel such sites have a right to exist and profit from content as much as the copyright holders (who are not necessarily the creators of said content). But hey, this is just the opinion of some random dude on the Internet.
- 10y ago
- icebraining 10y agoMens rea.
- ramblenode 10y agoThis was exactly my thought. It's also possible to create new URLs leading to the same resource through e.g. a link shortener like Bitly or a proxy service. Pushing this further, would something that is not itself a URL but from which the URL could be recovered, e.g. a hash of the URL, be in violation? Is it transitive, such that a URL from one page linking to another page with the original offending link is also in violation? I'm not a lawyer but this ruling seems to open the floodgates.
- rahkiin 10y agoI agree, this is bad for the internet. However, some context is missing: The case was in the Netherlands, regarding the website GeenStijl linking to leaked playboy pictures. The court said that 1) GeenStijl made money from it 2) they should and could have know, and most probably knew, that this content was illegal (because they posted it as 'leaked nudes!!'). The combination of these (earning money from content that is known to be illegal) was what made the decision. The court also said that these are requirements in the future. So, if I link to a page on a forum of my blog that becomes illegal alter, neither of the requirements are fulfilled. No problem. Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling. That is how I have understood it
- cm3 10y agoI hope that's the case, and I didn't read the legal text, but how would you protect yourself against that? Would we have to keep tamper-proof screenshots (or archive.is-like snapshots) for each external link posted?
- kuschku 10y agoRead the legal text please – the article that was submitted is basically full of lies.
- cm3 10y agoRead now. The ruling acknowledges the target is mutable, but it also says that the poster of a link on a page that's for-profit must check the target content. However, I cannot find anything how one should prove it was legal at time of linking. The only sensible thing I can find is that once notified a link has to be taken down. Did I miss something?
- Drakim 10y agoPerhaps it would work the other way around? The prosecutor has to positively prove that when you established that link, it was pointing directly at illegal content (and based on the context of your linking, that you knew it was illegal).
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- parenthephobia 10y agoThe situation is more nuanced than the article suggests. The ruling is on a matter of law. It isn't a ruling on the guilt of GeenStijl, or anyone else that shares links. It gives the referring court instructions for how to interpret the EU copyright directive, specifically on whether the criminal act of communicating a work to the public without the consent of the copyright owner had occurred. The Supreme Court of the Netherlands (Hoge Raad) asked the Court of Justice of the European Union (CJEU) to rule on in what circumstances should sharing links to infringing content be considered a "communication to the public", with specific attention to how the decision is effected by the prior availability of the content and whether the person sharing the links knew the content was infringing. The ruling of the CJEU was that when somebody knowingly shares links to infringing content for money, it should be presumed that they knew the content was infringing. This is not strictly an answer to the question, IMO, but it does establish criminal intent. It is being generally reported that commercial infringing linking has been generally ruled to be "communication to the public". I don't think that's the ruling, although the part of the judgement that isn't the ruling does say that. It would be interesting to know whether the whole judgement, or just the ruling at the end, is considered binding. I tend to assume the later, since the ruling is a repetition of the last paragraph of the judgement, and why would that happen if the judgement was binding? (Edit: Removed lots of unnecessary words.)
- Esau 10y agoMy god, I love Europe, but they have some of the most brain-dead results when it comes to decisions that affect the Internet.
- TheRealPomax 10y agoNot if you read the actual ruling instead of an article turning it into sensationalism with facts omitted. Always a good idea to get the facts before you commit to making claims. In this case the _actual_ ruling is about linking to content that you know is illegal, but you still intentionally link to for monetary gains. Any reasonable court, or person for that matter, would go "oh... yeah that's obviously a VERY DIFFERENT matter from this article's claim, and punishing someone for that is kind of reasonable."
- jacquesm 10y agoIf you take it as a given that any news publication is in some way or other 'for profit' and that all links are placed intentional some of the sensationalism is warranted. "Illegal" content is anything that the source does not want distributed, and this ruling could make it quite hard for news sources to link to places like wikileaks.
- bluesign 10y agoi think it means: "linking to illegal content 'knowingly' and 'making money of it' is copyright infringement' also second part can be optional I guess, but i think it heavily influenced the decision on this case
- golemotron 10y agoIt's time to start calling this something other than copyright. It's evolved way beyond the right to copy content.
- jbuzbee 10y agoTechdirt has a good writeup on the new ruling. One of the good points made on Techdirt, is regarding search engines which are obviously for-profit. How in the world would Google keep from linking to material which is violating someone's copyright? https://www.techdirt.com/articles/20160908/11305735465/terrible-ruling-eu-decides-that-mere-links-can-be-direct-infringement.shtml https://www.techdirt.com/articles/20160908/11305735465/terri...
- TheRealPomax 10y agosimple: google has no idea what it indexes. Please read the full ruling, which explains this only applies to those who willingly and intentionally link to content they _know_ is illegal, _and_ do so for monetary gain. Which is perfectly reasonable. The article posted to HN is pretty much fear-mongering for te purpose of getting some clicks.
- jbuzbee 10y agoIt's not that easy. What if the MPAA, Playboy, etc. send file filenames to Google and say "It's illegal to link to this file and if you do so, you are willingly and intentionally violating our copyright" Is that really what we want? It's a slippery slope when courts make these rulings without really understanding the impacts.
- slavik81 10y ago"What if?" That's already what happens. Google puts up a notice that some results have been omitted due to DMCA requests and links a copy of the requests.
- deleted 10y ago[deleted]
- ekiru 10y agoIt is not true that the ruling says that "this only applies to those who willingly and intentionally link to content they _know_ is illegal, _and_ do so for monetary gain." The ruling explicitly states that the first condition is sufficient to constitute a 'communication to the public' and that, when determining whether posting a link to such content constitutes a 'communication to the public', we must assume that the second condition implies the first condition. This last bit is in the ruling itself. In its consideration of the questions referred, the court qualifies a similar statement with "in so far as that rebuttable presumption is not rebutted", which may at least help those who can disprove that presumption. Two relevant portions of the court's judgment (my emphasis added to the latter): > In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. > or whether, on the contrary, those links are provided for such a purpose, _a situation in which that knowledge must be presumed_.
- thght 10y agoIllegal content? I guess they mean copyrighted content? Isn't that pretty much the entire internet? Even this comment is my intellectual property, so will this make you a criminal if you link to this comment without my consent? And isn't youtube making money of copyrighted content, or does youtube have a special deal with the court that only they are allowed to do this?
- parenthephobia 10y agoThey mean unauthorized copies of copyrighted works, not all copyrighted works. A previous ruling of the CJEU covered a similar situation to your hypothetical, and ruled that once something is made freely available to the general Internet by the copyright holder, they lose the right to control who can link to that content. Of course, they retain the right to control who can copy it. YouTube has a system in place for reporting infringing content. It's not necessarily very effective, but it's better - from a legal standpoint - than being told repeatedly that content is infringing and but intentionally and knowingly republishing links to the content each time another set of infringing copies gets taken down.
- danjoc 10y agoI don't understand why Europe and the US expend so much money and energy upholding the very laws that allow the big players like Amazon, Apple, Google, and Starbucks to evade taxes. The whole notion of 'intellectual property' seems purpose built to evade taxation. How are these governments funding these cases? With taxes. Taxes not paid by those who are benefiting most from these laws. It's a negative feedback loop. The more they spend, the more they ensure it is a winner take all scenario, and the more the winner will avoid paying taxes.
- geggam 10y agoSo Yahoo! is a large corporation built on illegal acts ? Interesting how the law is so perverted that irrational seems to be the norm.
- jsprogrammer 10y ago>On those grounds, the Court (Second Chamber) hereby rules: >Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those 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 or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed. That last sentence is a bit hard to follow, but it appears to say that linking to freely available third party content constitutes a communication to the public of the freely available third party content only if financial gain was pursued by the linking party when they understood the third party content to be "illegal". It is a seriously bad construation to infer that communication of public names (URLs) is a "communication to the public" of the actual third party content, unless the URL was designed by the third party for said content (however, in such case, the content was already communicated to the public by the third party).
- elcct 10y agoSo no Google and other search engines in the EU? Or as usual law will only be applied to the small guys.
- RossBencina 10y agoFunny, Rick Falkvinge took the opposite interpretation on the ruling: > EU Supreme Court: Hyperlinks are legal, even when linking to illegal publications https://www.privateinternetaccess.com/blog/2016/09/eu-supreme-court-hyperlinks-legal-even-linking-illegal-publications/ https://www.privateinternetaccess.com/blog/2016/09/eu-suprem...
- imh 10y agoCan anyone tell if this is transitive? Let's say you link to a picture or download you don't own. This ruling says you are guilty of infringement, right? Now what happens when I link to your site? Am I guilty too? And when someone else links to mine? Am I now responsible for ensuring the entire web of links downstream of mine is not infringing? Or is there a criminal intent thing here, so people like Google can still link to the pirate bay because it's simply part of the internet?
- downandout 10y agoSo then Facebook can be sued if someone posts a link to my copyrighted content? I hope none of my "friends" post a link to the picture I just took and don't want on Facebook then. I wouldn't want to have to sue them. This ruling will take about 20 seconds before it is abused for profit.
- kuschku 10y ago> This ruling will take about 20 seconds before it is abused for profit. You’ll get laughed out of every court. Remember, the EU does not operate under common law, but civil law, so the value of a precedence case is already limited. In such a case, more specific interpretation is definitely necessary.
- downandout 10y agoYou’ll get laughed out of every court. Apparently not, if other courts agree with this one.
- kuschku 10y agoFirst, PLEASE read the ruling. It’s disheartening how many are discussing it without reading first. Second, the court made a ruling about the application of a law in a specific set of cases: A company takes a link which they know points to illegal material, and publish it, for the intention of making profit. Third, this is Civil Law. NOT Common Law. Precedence means nothing. So, if that was actually true, due to (3), Google could have been sued thousands of times before, or Movie4k.to or so on – but they haven’t. Even kino.to could only be sued because they paid the uploaders of illegal movies money – not because they linked to them. Second, this specific case here doesn’t even apply to almost every other website. The argument is "because they published it and claimed exclusivity to make money, they had to know it was illegal". Which means if you have user generated content, standard C&D or DMCA stuff applies, and only if you violate that, it can be infringing.
- ajnin 10y agoSo now publishers must determine what is legal or not. They must do the job of judges as well or better as them or risk the very very high penalties attached to copyright infringement. This can only lead to defensive postures and extensive amounts of self-censorship to avoid that huge risk.
- petre 10y agoEuropean law isn't precedent based.
- easychris 10y agoThat does not mean that this ruling doesn't have any effect on future rulings of "smaller" courts. The European Court is asked by the local courts how to interpret European laws. Otherwise why should the local court should have asked the European Court in the first place? I don't have a better source than Wikipedia at the moment[1], but local courts will likely orient their decisions on this one. [1] https://de.m.wikipedia.org/wiki/Europ%C3%A4ischer_Gerichtshof https://de.m.wikipedia.org/wiki/Europ%C3%A4ischer_Gerichtsho...
- deleted 10y ago[deleted]
- soufron 10y agoThat's not what the decision said. At all. The decision said that a link to illegal content can be illegal in itself when 1. it's done for monetary purposes, and 2. when the person creating the link was aware of the illegal nature of the content being linked. But who would have doubted about that? Did you really think you could create links to illegal content for money and get away with it? On the other side, it clarifies the fact that a link to illegal content will not be illegal if it's done for free, or if it's done without knowing the illegal nature of the content being linked. To quote the decision : "it is to be determined whether those 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 or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed." From my perspective, it's a good decision.
- kstrauser 10y ago> Did you really think you could create links to illegal content for money and get away with it? Yes, and that's a horrible ruling. Almost everything can be construed as "for money". Are you a newspaper with paid subscribers? Everything you link is "for money". Do you have a Google ad on your hobby blog? Technically, you're getting paid for it. Someone will make the argument that you're driving traffic to your ad-sponsored blog by linking to infringing content, so obvious you're profiting from piracy. It's also ludicrous to pretend that the linker is guilty of the crime. If I link to Silk Road and you go there to buy drugs, I am not involved in the transaction. I didn't buy drugs. I didn't sell drugs. I had nothing to do with you ordering drugs other than telling you where they were. Google links to things that are illegal all over the place. Should they be guilty of linking to Muhammad cartoons because that's taboo in certain countries? Of course not, even if they get paid for it.
- tormeh 10y agoThe law is rarely interpreted so literally in court. Accordingly, few laws are written for literally-minded courts.
- koolba 10y ago> European court says linking to illegal content is copyright infringement If that were remotely true somebody better tell Google quick.
- gnomeoss 10y agoThis is why USA is much better place to live. You can even buy a gun. Good luck with that in Europe.