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The Courts The Internet Your Rights Online

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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  • The specific ruling: (Score:5, Informative)

    by Anonymous Coward on Friday September 14, 2012 @04:06AM (#41332531)

    The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

    - Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.

    - New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.

    - Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

    Taking the three criteria and the circumstances of this specific case into account, the court concludes that GeenStijl.nl has infringed on Sanomas copyrights by publishing the URL to the leaked nude pictures of Britt Dekker.

    • by Anonymous Coward

      So Dutch courts protect Security by Obscurity?

      No surprises here. Judges have as much of a clue of those things as the sec department in my company. Oh, wait...

      • by Grismar (840501) on Friday September 14, 2012 @04:34AM (#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 v1 (525388) on Friday September 14, 2012 @06:07AM (#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 vrt3 (62368)

            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.

            That's incorrect actually. I read the verdict (I speak Dutch), and what happened is that the photos leaked and were uploaded by some unknown person to FileFactory.com and later to other filesharing sites. GeenStijl.nl posted an article saying "hey, Britt Dekker's nude photos are leaked, you can see them OVER THERE".

            I don't know how GeenStijl.nl came to know

            • by Anne Thwacks (531696) on Friday September 14, 2012 @07:32AM (#41333361)
              Since you dont know what to think, I will tell you. This is clearly an infingement, but probably not in the way the summary says. (I can read Dutch, but do not understand what I have read :-)

              The link is NOT the infringement. The infringement lies in the description explaining what the link is. The person who put that description there aided and abetted the infringement, which was committed by the person that uploaded it to the file sharing site. The site host is not guilty unless perhaps of incitement by actively encouraging this kind of posting (if they did so).

              The LINK ITSELF is not an infringement. If you carry a stolen phone in a brown paper bag, then the brown paper bag (and its supplier) are not guilty. If you do not know the contents are stolen, and have no reason to suspect it might be then you are innocent. The person that told you the brown paper bag contained a bar of chocolate for his sick mother is very guilty indeed. However, if you advertise "I deliver stolen mobile phones in brown paper bags"! expect a guilty verdict.

        • by Hatta (162192)

          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".

          All physical locks ARE examples of security through obscurity. You can recreate the key be examining the lock. You can't do that with public key cryptography. That's the big difference that the "security through obscurity" meme is supposed to highlight.

          The point in this case is that the public had no means of guessing or find

          • by tehcyder (746570)

            GeenStijl made a discovery which they communicated to the public. Free speech. This ruling is barbaric.

            No, what is barbaric is a childishly simplistic black and white view of the world with absolute freedom of speech on one side, and evil communism/fascism on the other. It's not as simple as that.

      • That's how it works (Score:2, Interesting)

        by Kupfernigk (1190345)
        Lawyers totally depend on security through obscurity. Laws are deliberately made made vague and obscure, thus providing job security for lawyers.
      • by Erik Hensema (12898) on Friday September 14, 2012 @05:10AM (#41332767) Homepage

        Copyright law protects Security By Obscurity. So the judge was correct in this case.

        In order in infringe on copyright law, you'll have to make a copied work public. So, as long as you don't publish a copied work (i.e. keeping it obscure), it's not an infringement. This, for instance, allows you to make a private copy of a copyrighted work without infringing on copyright law.

        In this case, a private copy was made. Nobody knew where to find the copy, except for the person who placed the copy online. So, while the copy was on the internet, it wasn't public. Geenstijl made the copy public by making the URL known to the general public. Therefore Geenstijl infringed on dutch copyright law.

        • by gr8_phk (621180)

          In this case, a private copy was made. Nobody knew where to find the copy, except for the person who placed the copy online. So, while the copy was on the internet, it wasn't public. Geenstijl made the copy public by making the URL known to the general public. Therefore Geenstijl infringed on dutch copyright law.

          No, someone placed the copy online and then gave the URL to someone else - that would constitute infringement by your own definition. That the someone else made the URL available to the public woul

    • Can the ruling be appealed to a higher court or is this final?
    • by Walterk (124748) <{gro.mca} {ta} {telbud}> on Friday September 14, 2012 @04:36AM (#41332651) Homepage Journal

      [..] FileFactory.com, a cloud service to store files and share them with others. However, these files canâ(TM)t be found through search engines, only users with the exact URL have access to the files.

      Wrong. As some other posters have already shown [slashdot.org], google happily indexes and searches FileFactory.

      • by Racemaniac (1099281) on Friday September 14, 2012 @04:52AM (#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 1u3hr (530656) on Friday September 14, 2012 @05:04AM (#41332747)

        Wrong. As some other posters have already shown, google happily indexes and searches FileFactory.

        No it doesn't. FF blocks indexing. See http://www.filefactory.com/robots.txt [filefactory.com]

        Google indexes links to FF it finds on other sites. You can't just get a file listing of uploads to FF from FF (well, maybe with a court order).

    • by beelsebob (529313)

      That's nuts? What's to stop me from asking a friend to link to them, making them appear on google, and then linking to them?

    • by bytesex (112972)

      The 'intervention' criterium I can get along with - it means you're going out of your way to do something that can be interpreted as facilitating illegal activity. The other two criteria, however, I think are bogus: 'new audience' - this is about news, new audience is what it is supposed to do, and 'profit' is senseless as an argument. Typical Dutch aversion to capitalism.

    • by skywire (469351) *

      The three-pronged test in Dutch law produces clearly wrong results because it looks at an ill-chosen or incomplete list of characteristics of the actions that it is intended to categorize. The crafters of the test probably had in mind certain implicit criteria (such as the actual distribution of content or actually making it available) that would first have to hold before the three-pronged test would be applied to determine whether such an action constituted "publication" in a legal sense. Yet the court is

  • by Taco Cowboy (5327) on Friday September 14, 2012 @04:07AM (#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 @04:12AM (#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 Anonymous Coward on Friday September 14, 2012 @04:40AM (#41332667)

      the cookie deal is european wide legislation. each nation is free to implement it with their own law provided it at least satisfies the requirements in the european law.

      • by xSander (1227106)
        Yeah, and the Dutch "cookies law" is much more rigorous as a result. BTW, it's not really a cookies law, it's a law that requires websites to ask permission to track their visitors through whatever method, even IP addresses (as those can be tied to a specific person in most cases.)
        • by fnj (64210)

          even IP addresses (as those can be tied to a specific person in most cases)

          I know we're talking about Dutch privacy law in particular here, but that idea is so pernicious, and the mafiAA loves the lie so much, that it should never go unchallenged. So the following is in NO WAY an attack singling out you or your post.

          The idea is BULLSHIT. Granted, it does use weasel-wording ("tied to" and "in most cases"), and It may (or may not) be legally recognized and upholdable bullshit, but bullshit is bullshit. The MO

  • sgg63562hwyv6572vu (Score:2, Informative)

    by Anonymous Coward

    "However, these files can’t be found through search engines, only users with the exact URL have access to the files"

    trolololo:

    https://www.google.nl/search?q=site%3Afilefactory.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#q=site:filefactory.com+filetype:zip&hl=en&client=firefox-a&hs=QUX&rls=org.mozilla:en-US:official&prmd=imvns&filter=0&fp=1&biw=1440&bih=770&cad=b&sei=Gd9RUKvyD-mc0QWBmoCQDA&bav=on.2,or.r_g

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      The point is that a query like "britt dekker nude pictures" would not (at that time) return the links that they published.

      When it would be legal to post links like that, everyone could get around copyright issues by putting their material at some filesharing host and linking it on the main site.
      The judge considered that to be unacceptable.

  • Have Google check and filter _everything_ because of this ruling.

  • Is she the illegitimate love child of Karl Malden? That's the most distracting schnozz I've seen on a woman in a while.

    • I'm sick of tired of people mocking others for their physical appearance!

      Besides, she's clearly the love child of Owen Wilson.

  • A solution easily presents itself: just link to a google search.

    • by joostje (126457)
      The whole point of the reasoning of the judge was that the link wasn't in the google index (at least not at the time GeenStijl published it).
      • by nospam007 (722110) *

        So it's a pro-Google judgment?

        Don't link to crap before the Google crawler visited.

      • by omnichad (1198475)

        So robots.txt is supposed to apply to humans now? I guess that just means that nobody can visit a web site with a robots.txt file blocking their access.

        Is making a bookmark infringement? What if I print the URL on paper? Is it just making the link clickable? What if I change that link to plain text and tell people to copy and paste it into their address bar?

        I think Google should just block all Dutch IP's effective immediately. See what a web without linking is really like. When the court ruling is rev

  • by aglider (2435074) on Friday September 14, 2012 @04:43AM (#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.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      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 th

      • by fnj (64210)

        Oh for gosh sake. It's not a "semi-private" site, whatever that means. The links in question are to publicly readable files sitting on a publicly accessible server - with URLs that inherently exist but which were not publicly discoverable until the links in question were made. Period, end of story. The front page of File Factory states in huge lettering "The easiest way to upload and share your files in the cloud". It's PUBLIC. For an uploaded file to be publicly discoverable and reachable, all that has to

      • by skywire (469351) *

        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

        That's like saying that because a little hole-in-the-wall greasy spoon has the best gyros in town, and word has not spread far, it is really a private club. If the court thinks that a publicly accessible website is somehow "semiprivate", they are idiots.

    • This makes me curious whether URLs that are non-hyperlinked (i.e., "pre"/plaintext/whatever) would fall outside of this ruling. After all, they're not actually hyperlinks :)

    • by skywire (469351) *

      >They should as[k] to remove the reference and that'd be all.

      You were doing so well until you experienced a brain malfunction and went off the rails while typing the last line. That undermined everything you had said before.

  • by outsider007 (115534) on Friday September 14, 2012 @04:51AM (#41332693)

    And farting in bed can constitute an oven.

  • Apparently, common sense isn't a requirement for a judge in the Netherlands. Here's what should have happened:

    Judge: Your client made these files accessible on the world-wide web?

    Lawyer: Yes your honor.

    Judge: Without any sort of access control, like a login procedure or some such?

    Lawyer: Yes your honor.

    Judge: And now they're complaining that someone linked to them?

    Lawyer: Yes your honor.

    Judge: Please inform your client that he is an idiot. Case dismissed. *Bang*!

    • Given the undiscoverable nature of the data, the URL in this case could be considered to be a password. A normal login procedure is just a correct sequence of bytes, same as a URL to fetch a specific piece of data. Those who know it can get the data (and should be the only ones authorised to do so by the owner), those who don't, can't. Discovering a URL can be just as hard as discovering a username and password.
  • by zmooc (33175) <zmooc@NosPaM.zmooc.net> on Friday September 14, 2012 @05:15AM (#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 swilver (617741)

      Except, Google found it -- it was indexed by Google.

      If Google can find it so can others.

      • by joostje (126457) on Friday September 14, 2012 @05:31AM (#41332833)
        At the time GeenStijl published the link, the link wasn't indexed by Google. That was the whole point of the reasoning of the judge.
    • by AlXtreme (223728)

      Why would publishing a link to another site be illegal? If someone knew your username and password providing a direct login-link would probably violate slashdot's ToS but I can't follow the step to such a link being illegal.

      What the judge did was equating publishing a link to a previously unknown copyrighted work with publishing the copyrighted work itself. It would be the same as making it illegal to tell people they can find ABC on the pirate bay if no one knew so before.

      It was clear from the ruling and t

      • by zmooc (33175)

        Using credentials without permission is illegal. If you knew my username and password or any other secret key that is used to protect a resource, using them would be considered illegal intrusion unless you had my explicit permission. Also, sharing them would be facilitating illegal intrustion. Such information being stored in or combined into a URL does not change the matter.

        However, if you couldn't know you were using such credentials, it becomes another matter. And that is what this court case is about or

        • Using credentials without permission is illegal.

          . Under what law?

          • by nedlohs (1335013)

            That would depend on what jurisdiction you are under.

            In NY you have: Article 156 of the penal code [state.ny.us].

            156.05:

            A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization.

            and 156.00.8:

            "Without authorization" means to use or to access a computer, computer service or computer network without the permission of the owner or lessor or someone licensed or privileged by the owner

          • In pretty much every jurisdiction that has updated their laws since the internet was invented.

            Accessing a computer without authorization is illegal (pretty much everywhere). Knowing HOW to access the computer does not grant authorization for access. Don't confuse the ability to do something with permission to do it. Otherwise, simply posessing the key to a house would imply permission to enter the house.

    • The scenario is I publish your secret URL on my blog. You then move your files. I then update my blog with the new address. According to the judge, that's an infringement on your copyright.

      I really don't see how that can be right. The address of your publication is not the publication, as can be seen by the fact that the address changed, but the content did not. The fact that you consider the address a secret is immaterial from a publishing standpoint, which is what copyright is supposed to be about.
    • by Warhawke (1312723)

      I'm not sure I agree with your assessment of username and password . Usernames and passwords passed in plain-text are de minimis security. At best, at least under United States law (I'm not sure how Dutch law treats IP) the information may be classified as a trade secret. But copyright infringement has not occurred because direct copyright infringement requires actual copying.

      This would be a perfect example of security by obscurity. A poster argues above that the same argument can apply to the configuration

  • Did the site actually link to the content or merely reported its URL? Would such a distinction have mattered?
    • by fnj (64210)

      A very good question indeed. And what if the link was to an unindexed page linking to an unindexed page linking to an unindexed page linking to the "bad" item itself? Exactly who would be the naughty party in that case? The chronologically first in the chain? The chronologically last, who completes the chain? The guy putting up the "bad" item in the first place? All of them together? None of them?

      What if party A lists the first 5 characters of the link and then links to party B, who lists the next 5 charact

  • If I were to create an index of books and movies and told people where they can BUY them, am I guilty of infringing on copyrights?

    Clearly, no. We call this "advertising" and it's big business.

    "Contributing to the deliquency of..." is not the same as being a delinquent minor is it? We have similar laws which fill similar needs. Why don't they just push for a law which describes what is actually happening rather than harm the law twisting it out of proportion and purpose?

    I think it is beyond reason to argu

  • by amoeba1911 (978485) on Friday September 14, 2012 @06:39AM (#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!
    • You are under arrest for providing with this example, under the doctrine of promoting and assisting crime. /FBI

    • The COP can't arest you for copyright infringement.
      Only the copyright holder can make a case.
      After all it is a civil case and not a felony.

  • Tech-savy Slashdotters Rule Dutch Court Judgements Can Constitute Sanity Infringement
  • Yeah, 'cause, you know... pointing to where something is, is the same thing as making a copy of it. Don't you all know that by now? This is why, when someone asks you where the nearest McDonald's is, and you tell them to take a left at the 3rd light, you're making a copy of McDonald's without their permission.
  • Had this decision been made in 1994 I would have understood that they discuss it, at all.

    Seeing this Slashdot headline in 2012 makes me more embarrased than showing off my jewelry in a public bath.

    This makes me wonder how ageing those judges were.

    Sorry, the credibility of Dutch Courts in this particular case is rated: LOW

  • So someone published pictures on a PUBLIC FACING web server and made no effort to secure that data with an actual password. Instead, they thought they could just use an obscure name and no one would stumble onto the pictures. It is not clear from the article, but it sounds like the uploader was not a rightsholder of the pictures. If that is true, then they certainly committed copyright infringement by making the files available on a public server, even if they thought they could control distribution by u
  • Stands for Institution Peculiar.
  • If a site with links to violating material is in violation, then links to that site are in violation. The ruling is absurd on its face because if you follow it you could get "death by Bacon" on the Internet. OK, I really didn't have much to say here. I was just looking for an excuse to write "death by Bacon".

    Oh, and everyone is a terrorist pirate. Please report to the nearest public school football stadium for um... west nile vaccine. Yeah... that's it. Vaccine...

  • ...Dutch web surfers found all hyperlinks removed and that the world wide web was flat text. Pity them.

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