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The Courts EU

Hyperlinking Is Not Copyright Infringement, EU Court Rules 97

Posted by timothy
from the just-to-be-safe-please-type-the-link-yourself dept.
Freshly Exhumed writes "Does publishing a hyperlink to freely available content amount to an illegal communication to the public and therefore a breach of creator's copyrights under European law? After examining a case referred to it by Sweden's Court of Appeal, the Court of Justice of the European Union has ruled today that no, it does not. The Court found that 'In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.'" Reader Bart Smit points to the court's ruling.
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Hyperlinking Is Not Copyright Infringement, EU Court Rules

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  • The internet before search depended on hyperlinking.
    • Re: (Score:3, Insightful)

      Search is hyperlinking..
      • by AK Marc (707885)
        So any search result that doesn't hotlink the results isn't a search?
        • by mwvdlee (775178)

          Is publishing an URL (or QR or equivalent) legally the same as rendering a HTML <a href="..."> hyperlink?

          • by bondsbw (888959)

            I don't see why not. I guess it's not mandatory that the search engine publishes any kind of link to the original content whatsoever. But I think they lose fair use status if they publish more than a small percentage of the original, so I'm not sure what utility such a search engine would have.

      • Sure. I understand portals and hyperlinks as Yellow Pages irl. Nobody is going to sue Yellow Pages or other newspapers because they published an address of some fraudulent business or shop with "original" goods.

    • Re:Internet 101 (Score:5, Insightful)

      by fuzzyfuzzyfungus (1223518) on Thursday February 13, 2014 @07:49PM (#46242057) Journal

      The internet before search depended on hyperlinking.

      Even that aside, 'hyperlinking' is pretty much an improved flavor of citation. If you are going to ban 'hyperlinks to illegal material' you are this close to just banning the mere mention of illegal material; except easier to sell because there are scary computer words involved.

      Whether you see this as ironic, or as a continuation of copyright's original purpose, it is simply a matter of fact that the defenders of this sort of 'property' are learning that doing what they want requires rolling back all sorts of long-held rights. Worse, they seem OK with this.

  • TPB legit? (Score:5, Interesting)

    by xfizik (3491039) on Thursday February 13, 2014 @07:39PM (#46241987)
    Does this mean The Pirate Bay is legit now?
    • Re:TPB legit? (Score:5, Interesting)

      by Fluffeh (1273756) on Thursday February 13, 2014 @07:42PM (#46242003)

      A Very interesting flow-on understanding.

      As they technically don't host any infringing materials, they shouldn't be anything but legit - though I think they get hit with something along the lines of "conspiracy to enable infrigement" or some such muck - in which case, this might not actually have any bearing.

      • Re:TPB legit? (Score:5, Interesting)

        by fuzzyfuzzyfungus (1223518) on Thursday February 13, 2014 @07:51PM (#46242075) Journal
        Hasn't TPB's legal status always been 'We can't actually find any laws that they violate; but they just look so damn uppity and illegal that we couldn't possibly let them walk!'?
        • Re:TPB legit? (Score:5, Insightful)

          by AK Marc (707885) on Thursday February 13, 2014 @08:10PM (#46242191)
          That's the same as AllOfMP3. They were 100% legal, but shut down on pressure from the US to shut them down. No arrests. No charges. Just threats until they were shut down. The US believes in freedom of speech, unless they don't like it. hyperlinks are still illegal in the US, and taxpayer money was spent stiffling speech in other countries that didn't harm the US, but some businesses within the US asserted was harmful. Rights are available in the US only if you are rich enough to afford them.
          • hyperlinks are still illegal in the US ... Rights are available in the US only if you are rich enough to afford them.

            From the American Library Association

            Hypertext Linking and Copyright Issues [ala.org]

            As the cases above suggest, the law is not yet clear on what constitutes acceptable practice in linking to other people's Web sites. In most instances, however, it appears that linking in itself (whether deep linking or not) should not create legal problems unless there are extenuating circumstances. Setting up links to someone else's website is not the same thing as republishing information (the linking site does not actually store the linked site's information--it just directs the user to that information). Therefore, it seems unlikely that linking can reasonably be seen as copyright infringement absent those extenuating circumstances.

            • by AK Marc (707885)
              That's an optimistic assessment by the librarians, who also assert that enticing infringement is legal. Have you seen the number of copy machines in libraries? I haven't ever seen a library without one, but then I didn't go to libraries until the late '70s early '80s.
              • by Anonymous Coward

                Copy machines aren't illegal. Making copies is not illegal. Distributing copies is illegal. Learn your copyright law.

                captcha: deluding - oddly appropriate

              • Copy machines in libraries tend to be out of sight of the librarian's station. This is so the librarian can't see if you're violating someone's copyright by copying entire works rather than a few fair-use pages. There will probably be a warning against copyright infringement posted on or near the machine itself. This way, the liability is yours as the copier, and not the librarian's/library's, as the "facilitator" of the copying. A lame solution to a lame problem, but the alternative is no copiers, which wo
                • by AK Marc (707885)
                  Not where I've gone. To prevent vandalism of the most expensive item in the building, they are generally placed within sight of the librarian's station, at least in the libraries I've been to. The Reference desk even has its own set of copiers because the reference books can't be checked out, so they presume an increase in copy activity (but still by the librarian's station, just the secondary station, in libraries so equipped).
        • Re:TPB legit? (Score:4, Informative)

          by Anonymous Coward on Thursday February 13, 2014 @08:16PM (#46242233)

          Hasn't TPB's legal status always been 'We can't actually find any laws that they violate; but they just look so damn uppity and illegal that we couldn't possibly let them walk!'?

          Well. More or less.

          The prosecutor Hakan Roswall [wikipedia.org] did some research a couple of month before the raid and wrote a report were he came to the conclusion that what TPB did was legal.
          Then the minister of justice Thosmas Bodstrom [wikipedia.org] got a mail from the US government saying that they wanted TPB to get shut down so he called the prosecutor to his office and had a talk with him. (This is by the way illegal in Sweden, a minister isn't allowed to directly dictate what should happen. Regulations should be done through laws to make sure that they are enforced equally.)
          Then the police investigated the whole thing. After this another interesting thing happened. The officer Jim Keyse who was leading the investigation took a vacation. During this vacation he was on Warner Brothers payroll.

          I guess the reason the TPB-guys went to jail was more in the lines of coercion and bribes.

      • Re:TPB legit? (Score:5, Informative)

        by suutar (1860506) on Thursday February 13, 2014 @08:04PM (#46242149)
        While they don't host any infringing materials, a core assumption of the ruling is that "the thing being pointed to" is in fact authorized (in this case, news stories). The ruling states that creating the link is a communication to the public, and as such if the thing linked to is infringing, such a communication could be itself infringing or at least contributory. I don't think this helps them.
        • by Anonymous Coward

          Actually, this is what the ruling says:

          Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website *does not constitute an ‘act of communication to the public’*, as referred to in that provision.

          Creating a link is *not* an act of commu

          • by X0563511 (793323)

            TBP doesn't even link to them! All they provide is a number (presented as an alphanumeric string) and a few links to public content-neutral trackers.

          • by suutar (1860506)

            Actually, I think you should probably have highlighted "as referred to in that provision". The paragraph two before the one you quoted said "That additional circumstance in no way alters the conclusion that the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation

      • But conspiracy would apply to regular links too wouldn't it?

      • They don't even link to infringing material. They link to material that links to infringing material.

        • by fred911 (83970)

          No they don't, they link to information that contains an infohash or to a file containing swarm and file information to a group that may or may not be sharing copy-written data, dependent upon the users location and fair use rights.

          Lots of maybes there..

    • No, it's not similar. In this case, the plaintiff complained that someone linked to them, apparently within a iframe or something. Nobody linked to unlawful or "pirated" material. The (silly) claim was that linking to Slashdot would violate Slashdot's copy rights.

      TBP llinks to unlawful material, and exists primarily for the purpose of assisting in the unlawful distribution of material. They are therefore committing "contributory infringement" - they are contributing to a direct infringement. In the inst

    • by 3247 (161794)

      IMO, you can argue either way:

      • The Pirate Bay does not host any content but just links to content hosted elsewhere. It does not make the content available to a new public.
      • The content hosted elsewhere is not readily accessible to the public without the torrents (or "deep" links). By hosting torrents (or "deep" links), the Pirate Bay enables the public to access the content. Thus, the Pirate Bay does make the content available to a new public.
      • The Pirate Bay helps seeders to make the content available to the pu
    • by zzyzyx (1382375)

      No, according to the decision hyperlinking is allowed as long as it does not communicate the work to a new public. Linking to protected work in a way that would make it available to a new public (torrent files make stuff available to people that is not otherwise available to them) would not be concerned by this decision.

  • DO NOTE (Score:5, Insightful)

    by Gaygirlie (1657131) <gaygirlie@NOsPAM.hotmail.com> on Thursday February 13, 2014 @07:45PM (#46242027) Homepage

    This ruling only applies to copyrighted content that is legally and publicly available. Linking to content that is behind e.g. a paywall would constitute a copyright-infringement. Similarly, it doesn't rule that linking to publicly available, but unauthorized content would be legal, that is an entirely different matter.

    Why is this ruling important, then? Well, it could be used as a stepping-stone for more in-depth ruling about linking to content, like e.g. the aforementioned unauthorized content. Similarly, many journalists, newspapers and whatnot have been sued in the recent past for copyright-infringement simply for linking to an article on another newspapers' website. Some companies are even trying to extort money from Google and other search-engines for the same thing, so now they could possibly use this ruling as a defense. Search-engines aren't journalists, that's true, but a new ruling could be based on this one and grant search-engines the same rights in hyperlinking.

    • by zotz (3951)

      This ruling only applies to copyrighted content that is legally and publicly available. Linking to content that is behind e.g. a paywall would constitute a copyright-infringement.

      Wait, how can it be a problem to link to content *behind* a paywall. Either the person clicking the link will not be able to get to the link as the content is behind a paywall and they haven't paid, or, they have paid, have rights to the content, and can get to it by following the link. Is there some other possibility?

      all the best,

      drew

      • Well, it's not publicly-available material if it's behind a paywall or some other restrictions. You're changing the content's audience by introducing it to people that wouldn't have accessed it, and that's the part that constitutes copyright-infringement in this ruling, the changing the content's audience. On a similar note, there are plenty of sites with poorly-implemented paywalls that do grant access to the material even when it's supposed to be paywalled. The intent is important here; the court ignores

      • by suutar (1860506)
        If the paywall is designed such that authorization info gets carried along in the URL (as parameters, for example) and the link includes authorization info, it could get you to content that you couldn't reach directly (because you don't have the username/password to get the paywall to add the authorization info). It's not the smartest way to design an authentication system, but I've seen it in use in the past and I wouldn't bet money that nobody's using it now.
      • by AK Marc (707885)
        Many sites are using the law to enforce their poor security practices.
        • by Kjella (173770)

          In the same way you'd use the law if someone was in your house because you forgot to lock the door? The whole "Oh gee, I didn't realize I wasn't in public space anymore because nothing stopped me from going here so I'm totally innocent." doesn't work in real life, honestly why do you expect it to work online? Particularly when there's good reason to believe the person knew he was behind the front door that was supposed to keep him out and he's busy cleaning the place out of valuables.

          • I'd use the law if someone is stealing my valuables, but the crime would be theft (or trespass with intention to steal). If someone walked into my house and read some of my books, then it wouldn't be illegal and I'd have to ask them (politely) to leave.
            • by mcgrew (92797) *

              Not me. If I come home from work and find someone I don't know sitting on my couch reading, they're going to jail. Period. Even if the door is unlocked it's breaking and entering and a violation of my rights. You don't just walk into someone's house and read their books, especially since those books are free at the library.

              Hey, you, get offa my cloud!

              • Here in the UK, just entering someone's property isn't a crime. You'd have to show "intent to steal" or damaging the door to get entry is considered breaking and entering.

                I'd have to admit it would be strange to get back home and find someone there reading a book. I'd prefer it to having all my stuff gone - if the intruder said "I saw your door was left open, so I came in to stop anyone from stealing your stuff and while I was waiting I read this book - hope you don't mind" then I doubt that I'd call the
          • by AK Marc (707885)
            No more like getting the government involved to enforce "slander" laws for chilling effects (especially if it wasn't slander in the first place).
          • This situation is more similar to you living in a house that is 50% open to the public. You then forget to lock the dividing door and are shocked when people wonder into the part where they are not supposed to be - even when it is not marked that THIS part of the house is not meant for the public.

    • Re: (Score:2, Interesting)

      by suutar (1860506)
      Fun fact: linking to content that used to be freely available but is no longer is called out as constituting infringement. The Internet Archive may have a problem.
    • Also only applicable to the EU.

      I doubt a court in East Texas or Montana would have such a socialist view.

    • by MikeLip (797771)
      I guess I'm surprised that this had to be tried at all. If it's on the internet, on a publicly available web server and not locked down - say, behind some sort of security barrier that requires a username/password or similar - then no one should consider linking to it a problem. If that's not what you intend, then perhaps it should not be accessible in that way at all. After all, that's what the whole web thing is all about.
      • by Obfuscant (592200)

        If it's on the internet, on a publicly available web server and not locked down - say, behind some sort of security barrier that requires a username/password or similar - then no one should consider linking to it a problem.

        I think it could reasonably be argued that a link to material that is then displayed in a frame that inappropriately attributes the material would be infringing. E.g., a page with links to images, which when clicked display in an enclosing frame that says "Hey look at the great image I made." And, unfortunately, I've had exactly that problem on a website I run where a TV station was using my images and missattributing them. The only solution I could come up with was adding a watermark.

        The ruling is specif

  • (but as my wife would say.... what else is new?)

    Anyways... If the content is already freely available, then the content is already available to the public, isn't it? in what way would a hyperlink constitute an illegal communication to the public when the content itself is, in fact, already public?

    • To answer your question and to copypaste myself from above:

      Well, it's not publicly-available material if it's behind a paywall or some other restrictions. You're changing the content's audience by introducing it to people that wouldn't have accessed it, and that's the part that constitutes copyright-infringement in this ruling, the changing the content's audience. On a similar note, there are plenty of sites with poorly-implemented paywalls that do grant access to the material even when it's supposed to be

      • by mark-t (151149)
        The summary specified "freely available", not merely "publicly available". Freely available connotes, by definition, being available for free, and not requiring any sort of payment. Just because something is open to the public doesn't mean that it's free.
      • by Obfuscant (592200)
        And to add to mark-t's comment, the ruling also deals explicitly with the question of "would have" accessed it, saying that it is irrelevant whether people actually did directly access it or not, the fact was it was a publicly available link. "They wouldn't have accessed it" is moot. The audience was not being changed.
    • by c0lo (1497653)

      (but as my wife would say.... what else is new?)

      Anyways... If the content is already freely available, then the content is already available to the public, isn't it? in what way would a hyperlink constitute an illegal communication to the public when the content itself is, in fact, already public?

      "Public" doesn't necessarily imply "legally public".
      To me, the ruling says: "No matter about the legality of a freely available piece on the Internet, whoever links to it is not guilty of breaking any law".

      • by mark-t (151149)
        It said "Freely available", not just "publicly available" If it's freely available, that means that it's available without restrictions, or without costs, which I'm pretty sure would also mean legally public.
    • In no way. that is why the court ruled the way they did. These journalist were just looking to tax blogs that linked to them.
      • by mark-t (151149)

        These journalist were just looking to tax blogs that linked to them.

        My point being that if they had ever had any legitimate right to do so, then by definition, the content would not have been "freely available".

  • Didn't I read the opposite [slashdot.org] just yesterday?

    • Re: (Score:2, Informative)

      by Anonymous Coward

      Didn't I read the opposite [slashdot.org] just yesterday?

      No, that case was different since he copied the files and shared them from an own server. Had he linked to the originals he would have been safe according to this ruling.

  • must of been a really difficult decision, long live the pirate bay!
  • There's an interesting analysis from copyright lawyer Innocenzo Genna [wordpress.com] that suggests this may not be such good news for the Internet as it seems at first glance.

    The copyright-controlled activity that was under discussion was "communicating a copyright work to the public". The court decided that hyperlinking was communicating the work to the public, but ruled that it was still permitted by way of exception, because the work has already been communicated to the same public. According to Genna, this still bring

  • So the french blogger who was fined 3000 euros [slashdot.org] should now have a good reason to appeal his judgement, as the documents he linked to actually was publicly available?

  • I do not confuse copyright. I literally think it's used to control information, give people ability to censor and take information down, and make it hard to get by either not selling it or by requiring payment first.

    An example of copyright being used for censorship is the What You Play videos on YouTube. People made recordings of videogames, usually their own gameplay, because who doesn't like to keep videos and show the world what it's like when they play it? OR some people made reviews and/or put it toget

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