More on linking: the US says linking to infringing content is ok

Chicago looks at the world of linking
© mikeyexists

Further to the recent Canadian decision saying that linking to legally uploaded photographs is not an infringement, a decision was handed down in the US yesterday which says that it is not an infringement to embed a copyright-infringing video on another website (Case 113190).

This case was between MyVidster, a social video bookmarking site, and Flava Works which is a porn production company. MyVidster embedded infringing videos of Flava Works' content from third party websites, and this was found by the US Seventh Circuit Court of Appeals not to be infringing. In so ruling, Judge Richard Posner overturned a preliminary injunction from 2011.

This is an interesting case because unlike the Canadian decision which said that linking to a legally uploaded work is permissible, here the Courts have said that linking to copyright-infringing works is ok too. According to the judge, because MyVidster did not touch the data stream it did not host the infringing video; it merely linked to versions of the video hosted elsewhere on the internet. Further he said that MyVidster was not encouraging swapping, which in turn encourages infringement.

The Court used the logic that MyVidster is giving addresses to internet users enabling them to find entertainment, which (the Court says) is analogous to the New Yorker listing plays and giving the name and address of the theaters where they are being performed. In doing so the New Yorker is not performing the plays and is not "transmitting or communicating" them.

Posner said "To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and contributory infringement and by doing so make the provider of such information an infringer even if he didn’t know that the work to which he was directing a visitor to his website was copyrighted."

Linking is a hot potato at the moment. As far as this blogger can see the US has said it is ok, Canada has said it is ok in relation to legally uploaded material (Warman and National Post Company v Fournier), and in a summary decision the UK courts have held that linking to unlawful content could incur liability (McGrath v Dawkins). So where does all this leave Richard O'Dwyer, who is to be extradited from the UK to the US on copyright infringement charges?

Linking "facilitates" copyright infringement in the Netherlands

© Geralt

The application of copyright law to linking is an interesting and much debated topic at the moment. This is particularly so in the Netherlands it seems, where twice in the last few months courts have held that linking to content can constitute "publication" of that content (see here and here).

This week, a Dutch maths teacher has been told by the Dutch courts that by providing links on his website to infringing pdf copies of answers to maths questions, he infringes copyright in the answers. The pdf copies had been illegally uploaded to the internet so it seems that the issue was not that linking to online material constitutes publication (as it was in the two above cases), but that linking to infringing content facilitates third party infringement (by the students who clicked on the links - presumably their infringing act would be to make local copies of the material?)

This case raises three basic issues:

First, it is arguable that a solution to a maths problem is not sufficiently original to attract copyright in the first place. Indeed the teacher argued that as there is only one correct answer to a maths problem that answer should not be protected by copyright. The Dutch court held that whilst there might only be on solution to the problem, there are various ways of explaining how to solve the problem and therefore the answers were subject to copyright.

Second, making copies for personal use is permitted in the Netherlands, so the students were not infringing copyright by clicking on the links. This was deemed irrelevant by the court.

Third, should it matter, from a copyright perspective, whether the content being linked to is infringing or not? Surely if the content is infringing the infringing act lies with the person who uploaded the material rather than with the person who reads it?

Nonetheless, the court held that although linking does not in itself constitute copyright infringement, the links enabled others to infringe copyright, meaning that the publisher of the maths books suffered a direct loss due to the links to pirated copies. The fact that the teacher made no profit from the providing the links was not a defence. The teacher was therefore found to have facilitated copyright infringement and was ordered to remove the links from his website and to pay both parties costs.

This blogger is no expert in Dutch copyright law, however this seems to be an example of courts using copyright law to remedy something which seems wrong (linking to infringing material), despite the fact that the law doesn't quite fit. If anyone has an English translation of the court's judgment this blogger would be interested to see what infringing act it was that the court thought that the teacher was facilitating.

See more on TorrentFreak, here.

Hyperlinks, making available and the 'new public' -- or just a dead end?

Here's a provocative piece from Pekka Savola (@PekkaSavola, Legal Counsel at CSC-Scientific Computing Ltd and a researcher at University of Helsinki, Finland. Pekka has 15 years of technical background in internet working, including a degree of Licentiate of Science (Technology). He also has a Master of Laws degree and is currently putting the finishing touches to a doctoral thesis on using ISPs as a copyright enforcement mechanism. Pekka also has an article discussing hyperlinking from a blocking injunction perspective pending publication in EIPR.   This is what he has to say:

Did the CJEU just turn to a dead end in hyperlinking with Svensson? 

The Svensson ruling: much anticipated and discussed 

the CJEU judgment in Svensson (C-466/12) of 13 February 2014 ruled that a clickable hyperlink (as well as a framing link) to an authorized publicly available work does not infringe the communication to the public right because the public is not new. 

The answer to the referral questions had been widely speculated and advocated in a number of papers, including at least (plus numerous blog entries and other commentaries):

·         European Copyright Society Opinion on the Reference to the CJEU in Case C-466/12 Svensson (15.2.2013) 

·         ALAI Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the internet (16.9.2013), also published in (2014) 36(3) EIPR 149. 

·         Jane C. Ginsburg: Hyperlinking and "making available", a comment on the ALAI report, published in (2014) 36(3) EIPR 147. 

·         Alexander Tsoutsanis: "Why Copyright and linking can tango" (prepublished online on 3.2.2014, to be published in JIPLP) 

·         Jeremy de Beer and Mira Burri: Transatlantic comparisons: making available via hyperlinks in the European Union and Canada, published in (2014) 36(2) EIPR 95. 

Essentially the ALAI report, Ginsburg and Tsoutsanis advocated that hyperlinking can, as a form of making available, be infringing. The first two do not address the 'new' public and they start off from prima facie infringement. The biggest problem is trying to distinguish linking to web pages and linking to protected files. They fail to see that web pages are also protected works and technically 'files', and that a broad application leads to absurd situations that cannot be mitigated by copyright exceptions (at least in EU). Tsoutsanis used the new public criterion as a form of flexibility, although he had a more critical approach to framing links compared to the Svensson ruling. The ECS opinion failed to address 'making available' at all, and the last one barely touches on it. These two took a much more liberal stance. 

The CJEU's approach builds on the making available right, but leverages the new public requirement as the safety net. Is this good news? It is a relief against the backdrop of the ALAI opinion. That is, the ruling could have been worse. In the short term it might also be sufficient. But in the long term, the grounds appear to be worrisome. Particularly disappointing is the failure of the CJEU to substantiate why hyperlinking is 'making available'. 

The can of worms opened by Svensson 

CJEU issued its Svensson judgment without the opinion of an Advocate General. This is unfortunate, as an AG's opinion would likely have provided more research and contemplation on the implications of the decision. This would have been helpful for subsequent rulings. 

What are the loose ends opened by Svensson? I will name a few; there are others. 

1.      Hyperlinking is considered making available through 'providing direct access to works' so that the public may 'access [the work]' without any real substantiation (paragraphs 18–20). This is a dead-end for the argument that hyperlinking acts as a mere indication of (easily accessible) source. 

2.      'New public' is dependent on what the original author took into account (para. 24). This may lead to issues where the author's intention, ie. a mental element, must be examined. Luckily, the CJEU stated affirmatively that the intention is given when the work is published openly on the internet (para. 27). 

3.      The ruling only addresses scenarios where the initial communication to the public has occurred with the author's authorization. E contrario this line of argument would seem to strongly imply that the 'new public' criteria would always be met and result in infringement when the source is unauthorized or illegal. However, the linker cannot know if the target page or resource has been communicated to the public with or without authorization (and by whom). As such linking might later turn out to be illegal unless this would apply only to obviously unauthorized sources. (Martin Husovec also notes that authorized communication to the public is at least in theory narrower concept than legal publication eg. due to a copyright exception.) 

4.      Circumventing the restrictions is not discussed adequately (in para. 31). I suppose that the CJEU wanted to defer the argumentation to the pending referrals, especially C More Entertainment (C-273/13). It should be required that restrictions must be efficient enough. (Circumventing restrictions sounds a bit circular, doesn't it?) Most reasonable and efficient restrictions cannot be circumvented by linking, though they could be with other means, eg cookies. The exception are where the authorization token is included in the URL, but those are not very interesting from this perspective. Linking must not be deemed infringing by accident. For example, a stable link to an article behind a paywall should still be OK as a neutral reference; it should be the original author's responsibility to ensure that the restrictions work. 

5.      The judgment seems to imply (in para 31) that the author may later withdraw authorization by removing the work or restricting access to it. The former is an easy case, as no infringement could, it is hoped, occur due to referring to something that no longer exists. The latter could lead to problems if interpreted in such a fashion that a formerly legal link would transform to an illegal link through the acts of the author (e.g. if a disclaimer or a restriction that would not break existing links was sufficient). Suffice it to say that such withdrawal of authorization must be done so that previously legal links would stay legal by ceasing to work. 

6.      The judgment keeps repeating clickable links, even though that detail is irrelevant in the argumentation chosen. Superficially embedded links would not be covered. The arguments would seem to apply to those as well, however. 

Essentially the judgment was based on the new public safeguard which will fail in some cases. Taking for granted that hyperlinking as such is 'making available' of a work seems shortsighted. It may be difficult for CJEU to later rule – if (or when) 'new public' approach comes to a dead-end – that hyperlinking in fact is more like a reference, not providing direct access to the work. In my view, hyperlinking could be considered (at most) indirect making available of a work. 

The party who makes the work directly available (ie. offers it to the public) as originally contemplated in the WIPO Copyright Treaty is the person who puts the work on to a server, from which a member of the public may access it. There is has been no serious substantiation to the allegations that merely providing a reference to a work or (at most) indirectly making it available through a hyperlink (eg to a webpage) should or must be interpreted to fall within Art 3(1) of the InfoSoc Directive. While such an interpretation is possible, such a blanket statement would be unfortunate and a more nuanced analysis would be needed. 

Why did the CJEU not ask for an AG's opinion that might have discovered these loose ends and avoided the pitfalls in advance? Maybe the solution seemed very simple. As H. L. Mencken said, “For every complex problem there is an answer that is clear, simple, and wrong.” The CJEU apparently failed to think of the implications the line of argumentation would have. 

Let us hope a way out will be found.

Linking Site Operator Convicted by French Appeals Court

This summary is not available. Please click here to view the post.

Enter the Matrix: the Effects of the CJEU's Case Law on Linking and Beyond

On 3 February, 13.00 -15.00, Dr Peter Mezei (University of Szeged, Hungary) will deliver the talk "Enter the Matrix: the Effects of the CJEU's Case Law on Linking and Beyond". You can find the abstract and Peter's bio at this link: http://www.city.ac.uk/events/2016/february/enter-the-matrix-the-effects-of-the-cjeus-case-law-on-linking-and-beyond

1.00pm - 3.00pmWednesday 3rd February 2016

The City University
D104
Social Sciences Building
St John Street
London
EC1V 0HB

United Kingdom

"The Court of Justice of the European Union has developed a significant case law on digital copyright law issues, including linking and streaming, in the previous few years. The CJEU has confirmed validity of the “new public theory” in the TVCatchup (Case C-607/11) and the Svensson rulings (Case C-466/12) with respect to hyperlinking and streaming. Later, the CJEU extended the Svensson ruling’s ratio on embedding of audiovisual contents in its BestWater order (Case C-348/13). These decisions follow a liberal approach in interpreting the activities of internet users. Indeed, separated from several other preliminary rulings of the CJEU, they seem to meet the needs of our modern age better than the conservative approach that declares any kind of linking or streaming as a relevant use of the exclusive economic rights of the authors and related right holders.

A closer look at other decisions of the CJEU in the ACI Adam (Case C-435/12), C-More Entertainment (Case C-279/13) and PPI v. Ireland (Case C-360/13) cases might reveal, however, the tensions of the CJEU’s liberal approach. Further, there might be some unforeseen consequences stemming from the above decisions. Two new references for preliminary rulings were submitted by Dutch courts recently in  GS Media BV v Sanoma Media Netherlands BV and Others (Case C-160/15) and Stichting Brein (Case C-527/15)]. At worst, these might lead to the questioning of the validity of streaming services."

The presentation aims to introduce the development of the matrix of the CJEU’s case law, and raises a very difficult question: which pill should the CJEU take for the future: the red or the blue one?

Péter Mezei is a full-time faculty of the Szeged Law School (Hungary), where he also functions as Associate Dean for Strategic Affairs. He was awarded an honorary adjunct professorship (dosentti) at the University of Turku (Finland) in December 2014, and he is a part-time faculty of the University of Toledo (United States). His courses and research focus mainly on comparative law, comparative copyright law, and digital copyright law. He is teaching both in Hungarian and English language at the Szeged Law School, and he has delivered lectures at universities in Finland, the United States, France, Germany and Russia, and presented papers on conferences in Hungary, Germany, Canada, United States, Austria, Finland, Indonesia and France. He is the author/editor of 9 books and author of 67 articles/book chapters. His main articles in English language are accessible via SSRN (ssrn.com/author=1697918). Besides his academic career he is working as a legal advisor specialized in the field of copyright law.

Another German decision warns against broad application of GS Media presumption for for-profit link providers

By  Eleonora Rosati 

           Visual map on linking after GS Media, available here

A few days ago this blog reported on a recent decision of the Regional Court of Hamburg that, similarly to another German judgment – this being the also recent ruling of the Federal Court of Justice (BGH) [here] – questioned or, at least, proposed a restrictive meaning and application of the recent decisions of the Court of Justice of the European Union (CJEU) on the right of communication to the public and linking to protected content under Article 3(1) of the InfoSoc Directive.

It appears, in particular, that it is the CJEU construction of prima facie liability for unauthorized linking as found in GS Media [Katposts here] – notably the presumption of knowledge applied to link providers with a profit-making intention (see my table on the right hand side) – to face resistance.

Thanks to a couple of German Katfriends, I have been made aware that there is a third recent decision that also shows an approach to linking and the GS Media presumption which is possibly different from the one envisaged by the CJEU.

It is once again a judgment (310 O 117/17) [also commented here] of the Regional Court of Hamburg, once again involving pug dog Loulou.

The new Hamburg decision

In a nutshell, in this case the Hamburg court held that there is no act of communication to the public within §§ 15(2) UrhG and 19a UrhG if a person who links to protected content without the relevant rightholder’s permission is unaware that such content is unlawful. 

In particular, even if the link provider has a profit-making intention, there should be no presumption that he had awareness that the content linked to was unlawful if he operates in a context in which it would be unreasonable to expect that checks are performed to ensure that the content linked to is (and remains) lawful.

In the case at issue, the defendant’s linking activities were performed algorithmically and, similarly to the other Hamburg decision, also in this instance the infringing content linked to was available on Amazon.de.

Loulou

The defendant had no actual awareness that the content linked to was unlawful, nor was its unlawful nature recognizable. A relevant aspect was also the fact that, to be able to offer products for sale on Amazon, merchants have to agree to the platform’s terms of use, including declaring that they own the copyright to the images displayed.

Scaling down GS Media

According to the court [para 67], the GS Media presumption of knowledge cannot be considered as indistinctly applicable: instead, it should be only relevant in situations in which the link provider/defendant can be expected to carry out the necessary checks to determine the status – lawful or unlawful – of the content linked to.

Paragraph 68 of the decision contains a direct scaling down of the CJEU approach in GS Media. 

The German court acknowledged that [at para 51] the CJEU seemingly mandated a generally applicable presumption for links posted out of profit. However, a conclusion of this kind would contradict what is stated at paragraph 34 of GS Media itself, ie that the assessment of whether a link provider can be liable under Article 3(1) of the InfoSoc Directive must be individualized and take account of several complementary criteria that “may, in different situations, be present to widely varying degrees”.

Loulou's
unauthorized
telephone case

According to the court, in the case at issue it would be “unreasonable” and “economically unjustifiable” to expect that the defendant carries out such checks in relation to each and every content (automatically) linked to, including content hosted on a platform like Amazon.

The defendant’s business model – including the fact that the content is not ‘incorporated’ to look as the defendant’s own content - is such that no specific searches for unlawfulness can be expected. Holding otherwise would not only be unreasonable, but also amount to an undue compression of the fundamental freedom to conduct a business, pursuant to Article 16 of the EU Charter of Fundamental Rights.

Conclusion

This is the third decision in a short timeframe that proposes a 'minimalist' reading of the GS Media presumption for for-profit link providers. 

In these cases the German courts, instead of holding the presumption rebutted in the specific instance considered (as it appears - or rather appeared? - to be the approach in GS Media), held against its applicability tout court, on grounds of reasonableness and by placing significant emphasis on the fundamental rights dimension. 

From the reading of these judgments, the fear that the relationship between copyright protection and freedom to conduct a business might be too unbalanced in favour of the former is acutely felt. This - together with considerations relating to the proper construction of the right of communication to the public, including the requirement of an individualized assessment - arguably supported the resulting outcome. 

http://ipkitten.blogspot.co.uk/2017/10/another-german-decision-warns-against.html

CJEU to consider copyright implications of linking and framing

There has been much discussion about whether a website operator infringes copyright in a work by providing a link to another website containing that work, or framing through to that work. It is not clear whether linking and framing constitute a) a communication to the public and/or b) the making of an unauthorised copy.

This is an issue which has been discussed before on this blog in relation to decisions by the US, Canadian, French and Dutch courts. The UK government has considered whether new legislation is required to clarify the law on this point but decided to wait for the Supreme Court's decision in NLA v Meltwater.
Today the IPO has reported that a Swedish court, the Svea hovrätt, has made a request for a preliminary ruling from the CJEU regarding the infringement of exclusive rights to make copyright protected work publicly available by a third party subscription search engine. The case is Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB (Case C-466/12).
 

The following questions have been referred:
 

1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of 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?

2. Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?

3. When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?

4. Is it possible for a Member State to give wider protection to authors' exclusive right by enabling "communication to the public" to cover a greater range of acts than provided for in 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?

In short, the CJEU is being asked:

1. Does linking constitute communication to the public?

2. Does it matter if the website being linked to imposes restrictions on access on its users? (It is not clear from the questions what these restrictions on access are in this case, however they are likely to be the website's T&Cs or paywalls requiring subscription.)

3. Should there be a legal distinction between linking and framing?

 

4. Can a Member State expand the meaning of "communication to the public" to cover more than is set out at Article 3(1) of the InfoSoc Directive?
 

Given the volume of litigation on these issues and the intrinsic nature of links to the internet, these are clearly questions to which responses are needed. The UK IPO is inviting comments by 3 December 2012.

Wish to discuss GS Media and linking?

Well, who could possibly reply 'no' to such a question?!?

If you are in London in the evening of Tuesday, 28 March, then you may want to attend the new event organised by TIPLO (The Intellectual Property Lawyers Organisation), to which I have also been kindly invited to speak.

Entitled 'Linking after GS Media: clear (and happy) at last?', this meeting consists of a convivial dinner in the beautiful premises of Middle Temple (The Princes' Room to be more precise), followed by a discussion of the issues addressed (and raised) by everybody's favourite court, ie the Court of Justice of the European Union (CJEU), in its seminal decision in GS Media, C-160/15.

In that case the CJEU tackled the issue of linking to unlicensed copyright content, and determined what the relevant legal treatment should be.

Yet, the ruling raises several questions:

• How did the CJEU reach that decision?
• Where are we after GS Media: is the relevant legal framework on linking any clearer now?
• Profit-making intention: what is it all about?
• Who is likely to be most at risk in the post-GS Media world?

Click on this (GS Media-approved) link for further information and to register your place.

Blogging, posting, linking… infringing? Not in Canada

Current UK case law tells us that posting excerpts from an article published online infringes copyright in that article. Headlines are also protected, as they are deemed to form a substantial part of the article, and could in some cases be works in their own right  (NLA v Meltwater, reported here and here). The Court of Appeal has confirmed that the exception permitting fair dealing for the purpose of reporting current events does not apply to this type of copying. The question of whether the temporary copies defence applies is being appealed to the Supreme Court (see here).

Further, in a summary decision the UK courts have held that merely linking to a website that has published unlawful content could incur liability (McGrath v Dawkins).

 © owenwbrown

These issues form part of the current copyright consultation (a summary of the response is available here), but for the time being UK case law points firmly in favour of online copyright owners. The Canadian Federal Court has however recently decided a case which means much more freedom for bloggers and users of social media sites in Canada.

The case was brought by Free Dominion, "The Voice of Principled Conservatism". Free Dominion is a Canadian-based political news website on which users can post articles or link to online content for the purpose of political debate.

The Federal Court's decision relates to two works in which copyright was alleged to have been infringed. The first work was an 11-paragraph article published by the Toronto-based daily newspaper, the National Post. The article was initially reproduced in full on Free Dominion however it was reduced to a three and a half paragraph excerpt (including the headline) further to a complaint from the National Post. The second work in which copyright infringement was alleged was a photograph published on a photographer's website. The photograph was not reproduced on Free Dominion however a link to the photograph was posted.

© Rohan Kar

The Federal Court of Canada dismissed both claims. It held that three and a half paragraphs was not a "substantial part" of an article and that Free Dominion had therefore not infringed the National Post's copyright. It is interesting to note that whilst in Canada three and a half paragraphs, including a headline, is not deemed to be a "substantial part", in the UK an extract consisting of  265 characters can be a substantial part of an article for the purpose of copyright infringement.

Further, the Federal Court found that even if the copying was substantial, the article had been used for the purpose of news reporting and was therefore fair dealing. As noted above this defence is not available in this context in the UK, however in Canada the court held that fair dealing should be given a "large and liberal" interpretation therefore news reporting could include posting extracts from articles online.

As regards the provision of a link to a photograph, the Federal Court held that the link was not copyright infringement. The court found that the photographer had authorised the communication of the work by posting the photo online, and noted that the photographer could remove the photo if he wanted to prevent people from linking to it.

This blogger is not aware of the UK courts having directly considered this question, however as noted above, the High Court for England and Wales has summarily found that it is possible to be liable for linking to defamatory material. We have yet to hear the outcome of this case, in contrast however last year the Supreme Court of Canada ruled against attributing a defamation claim to online links.

It seems that the English and Canadian courts are taking very different approaches to online liability, however if the Free Dominion case is appealed (which seems likely) the lay of the land may yet change again. In the meantime this case provides reassurance for bloggers and users of social media sites in Canada that they may include short extracts from published material and may link to other sites without fear of reprisal.

Can Save-the-Link Save the Day?

Many people like to think of the law on copyright as being technology neutral. And to a degree it can be, where the technological evolution follows a vaguely linear path, say from text on a printed page to text from a word processor, or art done in oil paint to artwork created using a graphics software package. But from time to time the family of works which copyright seeks to protect is joined by a cuckoo, which may not immediately fit neatly into the existing legal templates or caselaw. An early example was photography. Arguably, even today it has still to reach full parity with other artistic works, as shown for instance in the recent French case concerning a photograph of Jimi Hendrix, reported by Marie-Andree here, but also in such cases as Painer (C - 145/10) and Bridgeman Art Library which demonstrate that the subject of originality in photographs is far from settled law. If further evidence that photography remains something of an outlier was needed, we can see it in last year's debate over the macaque monkey photographs. Part of the problem is technological - the fact that a camera generally speaking makes a faithful image of whatever is in front of the lens and so by definition a photograph starts out life as a copy of something - and partly it is to do with the law's approach to defining originality.

For well over the first hundred years of that particular technology, copyright law treated it is as lex specialis (for example, see section 21 of 1911 Copyright Act , Article 7 (4) of the Berne Convention and § 72 of the German Urheberrechtsgesetz).

Something similar occurred with motion pictures and sound recordings. The law was slow to give them equivalence to the traditional genres of copyright work, so that even now, determination of who is the 'author' and what term of protection to give, are both different to what applies in the case of literary, artistic, dramatic and musical works. And even more recently we have seen databases shoe-horned into the general framework, under the label of being sui generis, with different criteria for determining 'originality' and what constitutes copying. And then, right up to date, we have the issue of digital exhaustion, and the apparent splitting of the jurisprudence between software (lex specialis) and other types of digital works.

But despite these examples, not all new technologies are as disruptive to the copyright jurisprudence as they might at first appear to be. I believe that 3D printing currently falls into this category, although others argue differently.

And that lengthy preamble brings me to the real subject of this polemic: linking. The recent launch of the Save the Link campaign (more details here and here) was aimed at raising awareness of the real possibility that the European Parliament could shortly compound the error I think the Court of Justice of the European Union made in Svensson (C -466/12), where it found [23] that a hyperlink was a communication to the public. Many people criticised the Svensson judgment, but in my opinion, for all the wrong reasons. Had the court found that hyperlinking per se was not a communication to the public, then the larger question about the kind of public (either 'new' or the one envisaged by the copyright owner from the outset) would not have needed to be addressed. Linking is just the modern day equivalent of the footnote or bibliography to be found in virtually any academic or learned paper, journal or book. It should be one of those cases where the existing law is more than capable of regulating a new technology.

Although various internet campaigns, such as the one against SOPA or the continuing debate over net neutrality, have been successful, I am more sceptical about the chances of the Save the Link campaign. Not because it lacks merit. It obviously doesn't, but because its target - the European Parliament - is less easy to influence than a bunch of politicians on Capitol Hill. By definition, elected politicians need to be sensitive to the will of the people who elect them, but the European Parliament is a very different animal to either Congress or the parliaments of most member states of the EU. It is more remote from its electorate (few constituents know the name of their MEP or lobby them in any meaningful way, and even fewer would be able to outline the manifesto policies she/he stood on), and the parliament itself is generally reactive, having no power to initiate legislation, only to reject or amend legislative proposals emanating from the Commission. Rarely does the Parliament reflect the true feelings of the electorate which put them there. One notable exception to this state of affairs was their rejection of the ACTA treaty in 2012. I suppose it is upon this singular success that the Save the Link campaign is building its hopes. However that is not to say that European Parliament is immune to lobbying, far from it, it continues to be successfully targeted by many large corporations and other vested interests, and it is these influences that Save the Link is struggling to counter.

But despite the energy and determination of the Open Media consortium which is behind the Save the Link campaign, whose work I applaud, I have little faith in it influencing the way the EU will proceed, either with regard to linking or any other specific policy detail in the proposed copyright reform package. Oh, and the critical European Parliament vote takes place tomorrow, Tuesday 16 June.

Update. A press release on yesterday's vote by the Legal Affairs Committee urging the Commission to press ahead with the Copyright Reform package can be found here. There was no mention of the specific topic of linking.

Linking to infringing material is an infringement of copyright in the Netherlands

The great debate continues: is it an infringement of copyright to link to third party content? And does it matter whether that content is itself infringing or not, or whether the person providing the link is making a profit from their website? A quick recap on what the courts have found recently: in the US it is ok to link to infringing content, but it might not be in the UK, and in Canada  it is ok to link to non-infringing content.


A family friendly bunny

Last week the Dutch Courts gave their view on the issue: in the Netherlands can be an infringement  of copyright to provide a link to an infringing photograph. The Dutch blog GeenStijl provided a link to naked photos of model/reality TV star Britt Dekker. The photos had been leaked from Playboy magazine shortly before publication of its November 2011 issue, and had been illegally uploaded to a website called Filefactory. In providing the link, GeenStijl was found to infringe Playboy publisher Sanoma's copyright in the image. It has been ordered to pay €28,400 and will face further fines if it does not take the link down. The decision is available, in Dutch, here.

GeenStijl has posted an online statement saying that the decision is "terrifying for every journalist and everyone with a website". The statement says that GeenStijl disagrees with the court's reasoning, and argues that Dutch copyright law is in urgent need of reform.

The Court held that while linking to a photo does not infringe in itself infringe copyright in that photo, there are a number of factors which must be taken into account and which may cause copyright infringement. In this instance it was relevant that the public was not aware of the existence of the leaked photos before GeenStijl published the link, and that the public would not have had access to the photos had GeenStijl not published the link.

The Dutch Court also took into consideration the fact that GeenStijl is an ad-supported website, which would profit from posting the link, as it would attract more visitors to its site.

These two factors served to make the link infringing. Although it may be different under Dutch law, the potential to make money from an activity is not traditionally relevant to an analysis of copyright infringement, although we are seeing that in the online world it is clearly a relevant factor (see here and here for example).

GeenStijl has said that it will appeal the decision. Janneke Slöetjes of Dutch digital rights organization Bits of Freedom has commented saying that Bits of Freedom is not happy with the verdict which spells uncertainty for search engines. On the other hand Tim Kuik, director of Brein, the Dutch anti-piracy foundation, has said that "This [verdict] offers many opportunities against sites that are consciously offering access to unauthorized content".

This blogger agrees with the sentiment that linking to infringing material should not be right, but queries whether it is really an infringement of copyright?

More on this story from Ars Technica and from PC World.

Linking after GS Media ... in a table

Readers may remember that a few months ago I published a table that I had prepared for my students at the University of Southampton, attempting to summarise the position of the Court of Justice of the European Union as regards linking to protected content.

Further to this week's GS Media decision [here and here], here's an updated version of my 'linking table' [check out also this useful tool prepared and shared by Martin Husovec the same day of the GS Media decision]:

The table was originally published on The IPKat on 10 September 2016.