It's 2016 And The EU Is Just Now Getting Ready To Decide If Hyperlinking Is Legal

from the because-wtf dept

Earlier this week, we wrote about a legislative attempt in France to outlaw hyperlinking without a license (really), but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU? As is described in great detail over at the Disruptive Competition Project blog, just this week the Court of Justice of the EU heard a case concerning whether or not linking is legal. We wrote about this case last year, but the court has finally heard the case, with an Advocate General recommendation in early April, and a final ruling in the summer. There was a similar earlier case, the Svensson case, which the EU Court of Justice got right, but there’s some concern about this new case.

In Svensson, the CJEU concluded that a link is a communication within the meaning of “communication to the public.” But it let the defendant off the hook on the theory that the communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Simply put, the court reasoned that once the copyright holder makes the work available on the web without technical restrictions (i.e., no paywall), then posting a link to the material doesn’t communicate it to any audience that wasn’t already intended by the copyright holder. Thus, it’s fine to link to something publicly posted online, provided it was posted with the copyright holder’s authorization. No further licensing is required. So, common sense prevailed and crisis averted, right? Not so fast.

Svensson left a crucial question unanswered, and perhaps that question is already clear: What about a link to something that the copyright holder didn’t authorize? For example, what if you post a link on social media to a Buzzfeed article where one of the images that appears in the story wasn’t properly licensed from a photographer, or you link to a leaked document? And where does that leave search engines and other information location tools, which can’t very well determine whether every image, video clip, or article on the websites to which they link has been authorized by the relevant copyright holders before providing you a search result?

This is the question that is before the CJEU in tomorrow’s GS Media case. The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them.

But, of course, if the ruling says that such links are infringing, it could create a huge mess. Any link to unauthorized work could be deemed, by itself, to be infringing. And, the rule would apply to any link accessible in Europe, meaning it would impact people around the globe.


If the CJEU rules that every web user, in Europe and beyond, is expected to verify the copyright status of every item on a page before linking to that page, it could effectively destroy the web as we know it today. Would you have to repeatedly check back on the sites you link to, in case the content on the site you linked to has changed? Would you need to confirm that their licenses are all paid in full? Would you also have to verify the copyright status of links on the pages that you’re linking to? If any of this were the case, social media, search, blogs, comment sections, online journalism could be faced with unmanageable legal liability.

Hopefully, the EU Court of Justice recognizes the ridiculousness that would result from such a ruling, but until this summer, we just won’t know.

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Companies: geen stijl, playboy, sanoma

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Comments on “It's 2016 And The EU Is Just Now Getting Ready To Decide If Hyperlinking Is Legal”

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31 Comments
Machin Shinsays:

This strikes me as one of those stupid laws that if they pass it they will quickly find out it makes everyone running a website a criminal. They then will quietly slip it into some dark corner while leaving it on the books, because they could never admit they were wrong, and they then can selectively enforce it to attack anyone they feel like.

tqksays:

Re: Re:

laws change when you do it with electrons instead of sound waves.

Geeks, the new pariahs. They used to call us witches, or alchemists, or Jews. Mumbling weird incantations (dpkg –configure -a), causing magic to happen with their words.

Ignorance is bliss, until those knowledgeable people show up and then they persecute them for not being ignorant like them, by definition. Burn them for failing to be ordinary!

Anonymoussays:

“but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU?”

I’m sure Hollywood and its kind would love for the EU to rule that you need to purchase a license in order to have links on that person’s website that link to anything copyrighted belonging to someone else. Just think how much the ‘AAs could extort out of Google for all those millions of links that Google link to.

Anonymoussays:

This is unsettled law in EU since EU isn’t a federation. EU is a supra-national cooperation where the countries are free to have laws like they please if EU doesn’t have laws in the area. Only if EU legislates, do the countries have to rework the national legislation to be in line with EU law.

The reason why the digital area is largely undetermined in EU is the large gaps in approaches towards legislation across europe and the political deadlock on the issues. The CJEU is thus potentially acting politically no matter what judgement they deliver here, which is uncomfortable.

Anonymoussays:

Meanwhile in the Czech Republic and Germany

The Czech Pirate Party is sued for running an illegal streaming site that just used hyperlinks and didn’t store any content itself.

Apparently they took over the site in 2013 with the goal to create a case about hyperlinks that lead to unlicensed content. Now in Jan 2016 they were sued.

https://torrentfreak.com/pirate-party-risks-future-to-protect-hyperlinks-160130/

A similar case in Germany a few years ago (kino.to,largest German streaming site at the time) ended with people going to jail for years and having to pay damages even if they had nothing to do with uploading the content. The coder of the site f.e. got 3 years and 10 months after he admitted to coding the site which reduced the sentence.

Kind of wondering… does anyone how that would work out in the US? A site that allows users to post links to 3rd party sites that host unlicensed content, jail for the site admin or all good?

tqksays:

Re: Meanwhile in the Czech Republic and Germany

Kind of wondering… does anyone how that would work out in the US? A site that allows users to post links to 3rd party sites that host unlicensed content, jail for the site admin or all good?

First Amendment (“Freedom of Speech”)/Hollywood+Copyright?

At this point, I’d just assume you spend the rest of your life (and all that you own) in litigation hell. They may also demand your first born child (or maybe all of them).

Only masochists and their persecutors live in that country.

Anonymoussays:

If they do decide to rule that linking in itself is legal even if it links to something that is copyrighted then does that mean that sites like TPB, torrent sites etc. that reside in the EU that specifically have links to something copyrighted will those sites no longer face legal action to get those people running the sites facing criminal action and sites shutdown etc?

I doubt the AA’s will be happy for any ruling that gives sites like the TPB and torrent sits and other specifically linking sites that link specifically to copyrighted material a free pass.

Anonymoussays:

IF you put something on a website that has no paywall .
it should be presumed to be public,
free for anyone to view directly from the website or acess from a link .
IF Site x hosts illegal content copyright holders will
sue it anyway ,as in the case of piratebay or viacom vs youtube .
Expecting every user who links to a website to know or verify that every link on that website is legal
is ridiculous and an attack on free speech .
Some content on youtube could be classed as fair use in
one country while it might be classified as
infringing in another country.
EG a film or video game review which shows long
clips from the film or game being reviewed .
Any creator or company can use a paywall if they do not
want the public to view their content for free .
Or allow the first 5 articles to be viewed free as on
certain newspaper websites .
The point of the internet is sharing and publishing content and making
it easy to acess it from any country .
eu Lawmakers do not seem to understand this .

tqksays:

Re:

The point of the internet is sharing and publishing content and making it easy to acess it from any country .

Current practice is “full court press” on the concept of “culture” until rightsholders are paid (over, and over, and over again). Extortion for all, and copyrights last until infinity plus a day.

It’s the biggest shakedown or mugging ever devised by mankind.

Boycott! Avoid their stuff. Read a book, bought second hand or checked out from a library.

Stephensays:

Source for the Goose: References == Hyperlinks

When judges write up their court judgments they put in footnotes and endnotes. Those footnotes and endnotes frequently refer readers to source material for their readers to check up on.

Those footnotes and endnotes are the equivalent of hyperlinks.

In fact nowadays those footnotes and endnotes all often include URLs because that is where much of today’s source material is to be found: online. But it can also include published material and unpublished material (i.e. manuscripts in libraries).

The point is are judges now expected to get a licence from those who control such material before they can put a reference to it into a court judgment?

After all a hyperlink is simply an online equivalent of an academic reference.

@bsays:

Piggy in the Middle

Where is this push coming from?

Somebody wants the EU to regulate hyperlinking. That somebody must hold a lot of copyright material that can be found online. Somebody mustn’t be able to go after all the folks hosting a site that’s dealing out “their” content. Hence they want to criminalize the users, not merely the dealers. That is, not just target the supply-side but target the demand-side too (hoping each dealer’s business dries up).

But where does that leave me?

Host XYZ, he sits in Country1.
Host XYZ has his webserver in C2.
Hyperlinker ABC, she sits in C3.
Her blog is host in the cloud.
The cloud company is a registered business in C4.
And now I click on her link from C5.

The link puts the XYZ file into my eyeballs. This is when all the above copyright fine print needs to be assessed. I might have just accessed something Hollywood wants to hide from me.

Who will read all the legislation to decide if I am safe or able to be sued? And how will Hollywood know that @b needs to be assessed, since today I committed such an act/click?

I think u can see why the users of the internet are as confused as the users who are EVERY DAY simultaneously bending the Laws in countries C1,2,3,4,5.

My solution will be, not better Laws to deal with internet usage, but better technology. The law is best if pined to a single jurisdiction, it’s physical inhabitants, and not a web of 5+ countries.

Laws should be drafted in such a way to allow the invention of such useful “internet forensics” technology to operate. That is, after a court has decided that an online wiretap is warranted on internet user “@b”.

Law is by now the wrong tool for the job.

tqksays:

Re: it won't be that bad

All problems mentioned could be caused by some esoteric verdict in this case. It’s not probable.

I’m coming to expect esoteric verdicts these days. All it takes is ignorance (lack of knowledge) of technical subjects; something that’s rampant. Your average user just wants to get stuff done. S/He doesn’t want to know how that works because that distracts them from their priorities. I can accept that, and support it. It makes those who aren’t ignorant useful and valuable to those who are.

However, when those same ignorant users attempt to define how this stuff they don’t understand gets done, that’s when I say they’re in over their heads and please do drown ASAP, or get out of the water.

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