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Dutch Court Rules Hyperlinks Can Constitute Infringement 203

Posted by samzenpus
from the watch-what-you-link dept.
Ubi_NL writes "In yesterday's ruling of Playboy (via publisher Sanoma) vs Dutch blog Geenstijl, the court ruled that hyperlinking to copyrighted material was itself infringement of copyright. The court ordered the blog to remove all links to the infringing links (court ruling in Dutch). How this ruling fits into the supreme court ruling that hyperlinks cannot by themselves infringe copyright is still to be discussed, possibly in an appeal."
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Dutch Court Rules Hyperlinks Can Constitute Infringement

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  • by Taco Cowboy (5327) on Friday September 14, 2012 @05:07AM (#41332533) Journal

    I'm not very clear on the jurisdiction of the Dutch court - but if hyperlinking equals infringement ruling only applies on sites which are hosted on Dutch servers, this will effectively make Dutch servers sort of the "untouchable"

    Why would anyone want to host their sites on a Dutch server where court ruling such as puts on insane and unnecessarily limit?

  • by Lord Lode (1290856) on Friday September 14, 2012 @05:12AM (#41332561)

    First all your websites have to put an annoying message at the top saying they are using cookies (duh, who doesn't).

    Now this.

  • by Grismar (840501) on Friday September 14, 2012 @05:34AM (#41332647)

    This not a simple case of security through obscurity, though. If it were, then all physical cylinder locks or password security could also be considered "security through obscurity". After all, the security only lies in not publishing the exact configuration of bumps on the key required to open the lock, or the characters making up the password.

    The point in this case is that the public had no means of guessing or finding the URL other than trying every possible combination. GeenStijl provided the public with the right combination (the key or password if you will) and this is where their publication further infringes on the copyright.

  • by aglider (2435074) on Friday September 14, 2012 @05:43AM (#41332677) Homepage

    Hyperlinks [wikipedia.org] are just references [wikipedia.org]. Just like we have done so far in speeches, in books and articles.
    References don't contain the referenced information, they just direct the reader/listener to another "information container".
    Back to the web technology, a reference to a file is not the file itself (like the information author+title+publisher is not the book).
    A reference to a "pirated" file (whatever the content is) is still a reference, not the "pirated" file.
    You could say the reference helped the pirated file to be spread on the net. Yes, indeed it did.
    But still that's not infringement. They should ash to remove the reference and that'd be all.

  • by Racemaniac (1099281) on Friday September 14, 2012 @05:52AM (#41332701)

    But always, or only after an other site made a link to it? The point is not whether it shows up in google now, but whether it would have shown up if no site linked it in the first place. And even if it can be found via google, if it has some generic name not saying what's in it, it's still unlikely anyone would find it.
    The judge is saying that by hyperlinking it, geenstijl made it findable for everybody. And if that is the case, he might have a point. If them linking actually made it accessible for everybody (why before that it wouldn't have been possible to find those files, or extremely unlikely), then they did more than just linking... Of course you can still argue they didn't upload it, which is also true. But i can understand the decision somewhat (doesn't mean i agree with it). This is different from just linking to a youtube video you could have just as easily found using the search function of youtube.

    Not sure which side i'd choose, but it's not so black & white as many here claim it to be.

  • by zmooc (33175) <zmooc AT zmooc DOT net> on Friday September 14, 2012 @06:15AM (#41332775) Homepage

    I think this is an extremely interesting case. My first reaction was a typical knee-jerk don't touch my free hyperlinking speech! However, this goes further than that.

    What has happened here, is that a URL was used that was effectively just as secure as one secured by a username/password. Only difference is that the username/password (or in this case another secret key, which is a mere technicality) were in the URL itself. The reasoning of the judge was that by publishing this secret, Geenstijl has effectively published the material that was protected by the secret. I think that's not that odd a decision. However, it is a very dangerous one.

    What this boils down to, is whether the location of credentials should matter. One thing we all agree on, is that username and password passed in HTTP headers should be considered confidential. Using or publishing them without permission is most certainly illegal in most countries. Should a secret key or credentials that are part of or can technically be made part of a URL be treated in the same way? I think they should in obvious cases; for example using or publishing an url like http://slashdot.org/login?user=zmooc&pass=yo [slashdot.org] without my permission would probably be illegal. How obviously secret does an URL have to be for publishing it to be illegal? And who is to decide on that?

    That's what this case is about or at least should be about.

  • by Anonymous Coward on Friday September 14, 2012 @06:17AM (#41332783)

    This is obvious and even the Dutch supreme court recognised this.

    The point in this case is that the hyperlink is not to a public site, but to a semi-private site that you can only find with the hyperlink (GeenStijl, who will appeal this ruling [geenstijl.nl], point out that google does index filefactory [google.nl]).

    This is certainly no general ruling that hyperlinks to infringing content are illegal or constitute infringement in general. The question is whether the hyperlink can be seen as an act of publishing, e.g. opening up to the public something that was not publicly accessible before. Obviously, hyperlinks in general point to material that is already publicly available, so this does not apply.

  • by v1 (525388) on Friday September 14, 2012 @07:07AM (#41332959) Homepage Journal

    This not a simple case of security through obscurity, though.

    I see this from a different point of view. There are two distinct things I'd consider here, the link itself (separate from the content it takes you to), and the act of directing you to content owned by someone else.

    Most of us have had exposure to people trying to get links taken down. What has to be considered here is what they're trying to claim for protection. The actual provider of the content is not the link. It's what's at the other end of the link, which in these cases is the person claiming to be wronged. I don't see them having any right to claim infringement of content because they alone are the ones providing it. I don't see any difference between this and say for example, my posting a note on a telephone pole saying "go to SuperScreen Theatre and watch Xmen 7". I'm not infringing on their ownership of anything xmen, I'm merely informing people that you're offering it. There's no fundamental difference in what I have done if XMen 7 is a regular paid show or a free-of-charge sneak preview that SuperScreen actually only informed a small group of people about. The difference there being one showing was public or charge normal, and the other was a "free if you know about it" kind of thing. But there was no difference in my posting of the notice. The only change was on the provider's end, and why should that change the legality of what *I* did?

    So at least how I'm seeing it, the providing of the link itself should be legal, and that's what most people here will also be assuming.

    But then we have to address the url itself. If it contains a secret parameter such as a unique ID, login, etc, is it legal to give that way? And I mean in any form, not just an easily clickable hyperlink. You can't call it a trade secret because you're sending it out to at least a subset of the public. It's a fact so you can't copyright it. An unauthorized person using it could be charged with unauthorized access (using credentials that were "stolen") but the person providing the link isn't the user so that doesn't apply to them. (and then you get into the IMHO completely BS concept of "contributing to infringement" etc) I don't see any angle to view this as illegal.

    I think this is just some frustration on the part of the providers. They had a system in place that was assisting with their revenue, was convenient for them and their customers, and was mostly under their control. A bit like mailing out coupons to some of your good customers. But then they decided to change how their offer was being sent out, say for example by emailing their customers links to the coupon to download and print out. But now someone has posted the url to that coupon so it'd available to a lot of others. So others are going there and downloading and printing the coupon too, which is not what the provider intended or wants to have happen. So they're looking for a way to call what the poster is doing is "illegal" - not because it IS illegal, but merely because they want it stopped. The provider has no real ground to stand on, other than "I don't like it, I didn't intend for that to happen." They made a change to make things more convenient for themselves and their customers, and in doing so they gave up a bit of control over who they were giving things away to. They switched from using a secured private distribution method to using an insecure public distribution method. They continue to claim "privacy" but they themselves made it public. It's no different than my opening the curtains at my house and then getting upset when people look in my window. What I want doesn't have any bearing on what you see, I'm the one that made it available and it's my fault that you were able to see it. I have no right to demand you look the other way.

  • by DJRumpy (1345787) on Friday September 14, 2012 @07:20AM (#41333005)

    Can't agree more. These links could sit out there for 50 years, and if no one knew about them or no one used them, not a single case of infringement would happen. Simply pointing to 'stolen goods' (I use that term with tongue in cheek) doesn't make the finger pointer guilty of infringement.

    It's kind of ridiculous as to the power the media companies are employing in the courts and in the political system.

  • by amoeba1911 (978485) on Friday September 14, 2012 @07:39AM (#41333091) Homepage
    COP: Have you seen anyone here selling counterfeit Rolex?
    Pedestrian: Yeah I saw a guy holding a suitcase of watches just five minutes ago.
    COP: Can you point in his direction?
    (Pedestrian points)
    COP: You are under arrest for copyright infringement!
    ...
    Judge: GUILTY!
  • by mumblestheclown (569987) on Friday September 14, 2012 @07:40AM (#41333095)

    You don't seem to understand how IPR works. As it works in most countries, "infringment" is a judgement call based on intent, amount, use, and so forth. For example, I can link to CNN.com from my homepage. No problem there. However, let's say CNN one day accidentally uses a picture that they dont have the rights to there. Am *I* guilty? no judge in the world would say yes. On the other hand, let's say I make a direct link on my homepage to "get your free copy of (latest hot movie here)" which direct links to a page or actual file on somebody else's site. What this ruling says is that the judge CAN consider this and CAN treat this differently, as damn well he should be able to.

  • by DJRumpy (1345787) on Friday September 14, 2012 @07:46AM (#41333117)

    If we follow your process through to the logical conclusion, then it would imply that the person linking to the content intended to download every linked object, which is patently ridiculous. The person creating the links doesn't necessarily intend to do anything with the links other than to profit from site visits via ads or whatnot.

    Note that in both of your examples, you are the one linking to and accessing the IP in question.

    This is a dangerous judgement, make no mistake. It opens up any search engine which frankly is an algorithm and not self aware. These just scrape sites and produce the links. There is no 'intent' there.

  • by Anonymous Coward on Friday September 14, 2012 @08:02AM (#41333183)

    Hey, well as long as you have looked at it from multiple angles and reached a conclusion you must be correct. In fact, I'll bet your facts, logic, and statistical models are unimpeachable. Referring to IPR instead of copyright, trademark, and patent protection was the coupe-de-grace...

  • by fustakrakich (1673220) on Friday September 14, 2012 @08:21AM (#41333285) Journal

    Your naivete is endearing, or at least it would be if there wasn't so much needless BS for people to suffer.

    You may disagree - but yes, the system is inherently corrupt, designed to have everyone clawing their way over each other to the top of the heap. Nothing 'conspiratorial', just normal, everyday nature at work. All other systems work precisely the same way. It is universal. It is also a scientifically proven fact that authority WILL be abused. Please, don't try to tell us it is not being so abused in this case, like so many others. That would be absurd. Your society feels that this level of abuse is acceptable. But that doesn't make it any less abusive. If this were 1820, would you be arguing for the property rights of the slave owner? Would you not condemn people if you witness them abusing an animal?

    This little 'IP' business must be turned away completely. You seem to believe it's helpful to society, but it's only because it's convenient for you to believe propaganda at this point, for whatever reason.

    You teach 'ethics' through guidance and example, not by dictate and prohibition. And you can foment nothing but disrespect when you don't apply the rules evenly, just like a coat of paint.

You can bring any calculator you like to the midterm, as long as it doesn't dim the lights when you turn it on. -- Hepler, Systems Design 182

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