back to article EU court: Linking to pirated stuff doesn't breach copyright... except when it does

The EU’s bizarre, home-brewed doctrine of copyright evolved further today, with a ruling that URLs linking to infringing material are not themselves an infringement, except when they are. Confused? You should be – and perhaps that’s the idea. Today’s Court of Justice of the European Union (CJEU) verdict in the Svensson case, …

  1. Mage Silver badge

    Umm

    I'm still confused.

    1. Anonymous Coward
      Anonymous Coward

      Re: Umm

      Simples...

      If you are found to have committed a copyright offence, an arbitrary decision will be made on whether you are guilty or innocent.

      I'm sure you can contest said decision if found guilty, but I'm not sure on what grounds. Plus the establishment decided you needed to be found guilty the first time, so are unlikely to change their mind/minds.

      Or were you hoping for some clearly argued explanation following a logical path to reach a conclusion?

    2. John Lilburne

      Re: Umm

      Why? If you link to a free download of the latest blockbuster you are almost certainly aware that the copyright holders have not sanctioned that link. Same if you post links to music files, or best seller books.

      If however you post a link to some web page containing some obscure article then you probably aren't aware that it is ripped off material.

      If your business is involved in posting links to content then you ought to be aware of the copyright status of the stuff you are linking to.

      1. Dr. Mouse

        Re: Umm

        Let's think of this outside the realm of the internet.

        Say I have a market stall. The guy in the next stall is selling cheap DVDs. I put a sign up on my stall pointing to his, advertising that he has cheap DVDs of the latest blockbusters, hoping that this will draw punters in who may be interested in my wares.

        Have I committed copyright infringement? Personally, I would not say that I have. He is the one selling pirated material, the customers are the ones buying it. I'm hoping that footfall will increase my profits, but nothing else.

        Taking this back to the internet, a hyperlink is a signpost, it tells people where to find something. This shouldn't be a violation of copyright in itself.

        Also, with the Dutch case, why did Playboy not go after the file sharing site? That is where the infringement was occurring. If the file did not exist, the hyperlink wouldn't work. Simples.

        1. John Lilburne

          Re: Umm

          You have just described the offence of aiding and abbetting the commision of a crime.

          1. Anonymous Coward
            Anonymous Coward

            Re: Umm

            Ok - let's try another example:

            You link to a site because it is interesting. Said site contains no file sharing you are aware of.

            Linked site starts to share content that is deemed to violate copyright.

            Have you done anything wrong? If you are deemed to have done something wrong, how do you prove your innocence and that you weren't acting in conjunction with the planned future filesharing?

            1. John Lilburne

              Re: Umm

              Even the most ancient and non-technical of judges can distinguish between "This is an interesting site" and a raft of "download movie X here" links.

          2. Dr. Mouse

            Re: Umm

            You have just described the offence of aiding and abbetting the commision of a crime.

            Assuming this is the case*, the person hosting a hyperlink should be investigated for, and potentially charged with, aiding and abetting copyright infringement, not copyright infringement itself. This is an entirely different crime, with different legal tests and framework involved**.

            *IANAL

            **AFAIK, see *

        2. Andrew Orlowski (Written by Reg staff)

          Re: Umm

          What you're describing is secondary liability theory.

          The difference between the internet and real life here should be obvious. The link is not merely Information, a signpost, as you suggest. To some extent, the link is helping deliver the infringing material into someone's possession. It's part of a new distribution chain too. So it's both.

          So, your analogy that the link is "only information" collapses here. Secondary liability theory has to evolve along with common sense.

          1. Dr. Mouse

            Re: Umm

            I completely disagree. A link is a signpost, no more, no less, a set of directions describing where something is. It does not "deliver the infringing material into someone's possession", except by telling them where it is. It has nothing to do with a "distribution chain".

            1. Charles 9 Silver badge

              Re: Umm

              It does if it's machine-readable, meaning something like a computer can follow the link at your direction. A web browser does more than read directions, it follows them, too. Think of the difference between a car YOU drive and one that can follow signposts and drive itself. In the latter case, if you post a misdirecting direction and get the self-driving car into a trap, that's a crime.

      2. juul

        Re: Umm

        How about, if you link to a streaming site, and the streaming is legal in your country. the site that holds the content is situated in a country that does not respect copy right law's?

        You will then not be infringing on your own countrys laws and the content holding site will not be infringing on it's countrys laws.

        The person who made the copy, might or might not have committed a crime, depending on the laws of the country, he/she was situatede in during the process.

  2. Pascal Monett Silver badge

    Just goes to show

    It seems to be open season on copyright right now.

    Oh well, a bit of disruptive justice can't be all that bad, eh Uber ?

  3. arctic_haze
    Angel

    A real Renaissance man

    So now Orlowski became an expert on EU copyright right? It is obvious that he understands climate better than IPCC but this is new to me.

    1. Anonymous Coward
      Anonymous Coward

      Re: A real Renaissance man

      So now Orlowski became an expert on EU copyright right? It is obvious that he understands climate better than IPCC but this is new to me.

      It may be of help remembering that the good man is actually a fairly capable journalist, and thus perfectly able of researching the matter to a degree that he's not talking out of the wrong orifice. I can't speak about the climate things, but I do know he does indeed understand copyright shenanigans.

      As for the matter at hand, of course there will not be a clear answer there - this is political. If the law was clear it would be a matter of the "regular" courts and the ECJ lot would be bored and have nothing to do. It's much more fun seeding uncertainty.

      The only problem here is that they have laid bare a clear showing of ignorance about how the Net works because making someone responsible for what they point would pretty much mean the end of all search engines ... wait a moment. THAT's what this is about. Google has obviously not thrown any lobbying money their way, so this is a heads up that they really like expensive dinners too.

      Now, given that people got bombed in Paris, can they now sue everyone who put roadsigns to Paris? Just curious.

      1. DavCrav

        Re: A real Renaissance man

        "It may be of help remembering that the good man is actually a fairly capable journalist, and thus perfectly able of researching the matter to a degree that he's not talking out of the wrong orifice. I can't speak about the climate things, but I do know he does indeed understand copyright shenanigans."

        But he's a journalist that calls some of the most senior judges in Europe 'stupid' because he knows better than they do about copyright law. Maybe we aren't in Gove territory yet, but we are on the same scale.

        1. Adam 52 Silver badge

          Re: A real Renaissance man

          Going to the Courts is always a lottery; UK (playing a video amounts to "copying"), EU, US (Apple vs, well, everyone and Google books can scan copyright without permission), even Zimbabwe (Mugabe lost today). Maybe not Russia.

          Making the ambiguity an EU issue is just silly.

        2. Anonymous Coward
          Anonymous Coward

          Re: A real Renaissance man

          He's without a doubt a capable journalist able to research, but he's also been able to completely ignore the result of that research when it would not fit his opinion. Like recently, his absurd explanation that EU laws get made by a dictatorial EC, which happily ignored the role of the democratically elected MEPs.

          That showed that either he's either very ignorant of how the EU works, or is very able of distorting fact to fit his euroscepticism.

          I don't mind a good opinion essay, and his almost always make good, thought-provoking reading, but they're rarely even pretending to be presenting factual news.

  4. Nathan 13

    Do they even know what they are talking about!

  5. Phil W

    Eh?

    "Wathelet said that hyperlinks should not fall under copy protection. This caused a shock wave around rights-holders since it meant EU works were not protected by copyright in the EU"

    No, it doesn't mean that, not even remotely. All it means is that providing hyperlinks to copyrighted work is not covered under copyright protection, the content itself would still be protected however.

    It would mean that rights holder would have to pursue the site/service hosting the content rather than any other site providing a link to that site/service.

    To make it law that providing hyperlinks to copyrighted content infringes copyright has two problems

    1. Unless you make the wording of the law very specific so that it only covers links to sites/services providing copyrighted content without the right to do, it would make links to the copyright holders (or their licencees) own sites and services illegal

    2. Even if it did specifically cover links to sites/services providing copyrighted content without the right to do so, and hyperlink is effectively just a pointer. To make it, in principal, illegal to point to illegal activity is to essentially make it illegal to report crime.

    1. Alan Brown Silver badge

      Re: Eh?

      "It would mean that rights holder would have to pursue the site/service hosting the content rather than any other site providing a link to that site/service."

      Which is the sensible course of action.

      In some types of case there's a principle of secondary infringement (repeating defamatory speech or bringing more people's attention to it is one of these areas) and I suspect this is what the ECJ is trying to make apply here.

      Of course it'll probably end as well as prohibiting Google from linking to newspaper articles did. These kinds of cases are primarily based on who has the deeper pockets rather than actual justice.

      1. Anonymous Coward
        Anonymous Coward

        Re: Eh?

        In some types of case there's a principle of secondary infringement (repeating defamatory speech or bringing more people's attention to it is one of these areas) and I suspect this is what the ECJ is trying to make apply here.

        Ah, but isn't that the point? There is no such thing as "secondary infringement" which means they're creating new law - which is emphatically NOT their job, responsibility or even remit.

        If you would permit an idea like secondary infringement to take hold you introduce a whole lot of vagueness into the system. Is a journalist infringing when he/she points at the infringement? How do you scale this "crime" - if you point at a whole website, it that a more grave infringement (so am I liable if I mention Pirate Bay?). And Where does that liability occur? If I'm the site operator and directly point at infringing material, or if someone on a BBS that I happen to host points at it? What if someone points at it using a URL shortener, will bit.ly also be legally in trouble?

        I cannot but help with agreeing with Orlowski calling the senior judges "stupid" in this context - that's a whole lot more polite than they deserve. Especially senior judges should know better.

        1. Alan Brown Silver badge

          Re: Eh?

          "If you would permit an idea like secondary infringement to take hold you introduce a whole lot of vagueness into the system."

          Yes, it's incredibly vague, which is why defamation law is a shark tank and hence my comment about "who has the deepest pockets".

          Secondary infringement shows up a _lot_ in civil cases.

          "Is a journalist infringing when he/she points at the infringement?"

          In defamation cases (civil law): absolutely. It's regarded as republishing the defamation and has been ruled as such on several occasions.

          Similarly, when a court order orders a particular website be shut down or not mentioned, mentioning or republishing the site puts you in the firing line of the court - _even if you are unaware of the court order_. National jurisdictions are a bit nebulous in this day and age, etc.

          In copyright cases, if someone takes that infringing website and republishes the images from it, that would definitely be secondary infringement (the images weren't stolen from the original copyright holder, but they're still copyright violation). The question is whether publishing links to infringing content in a widely read _for_profit_ publication (or website) is the same as the publication publishing them itself.

          Even if the publication _isn't_ found to be violating, the way these kind of laws are written it's entirely possible for the company to face a choice of being bankrupted by going along with the charges and getting penalised out the Wazoo or bankrupting itself defending them - bearing in mind that the moment it can't pay its lawyers it will automatically lose the case anyway, but there's NO guarantee that money spent on the defence will be reimbursed if it wins (Pyrric victory).

          Again: This kind of case is more about who has the deepest pockets than actual justice or even who's right in law (if you're in the right and you can't afford the lawyers, you're in the wrong anyway)

          The thing is, that if the website is found not to be infringing, then all those torrent indexing sites can be argued to not be infringing too (after all, they just publish links). That means the big guns are going to be rolled out to try and ensure that they get their way on the day.

    2. John Brown (no body) Silver badge
      Facepalm

      Re: Eh?

      "It would mean that rights holder would have to pursue the site/service hosting the content rather than any other site providing a link to that site/service."

      My dear chap, we simply can't have that. That would mean only one person/company to sue and one court case and one lawyer (or legal team). If we can sue everyone who links to it, we can play whackamole forever and buy that Caribbean island we've always wanted.

  6. Bob Rocket

    silly rules

    The publication itself is a breach if not authorised.

    If the publication itself is removed then the breach is removed. (and the link now points to nowhere)

    That's nice and simple.

    If the link is removed the publication is still available and the breach is ongoing.

    The link has nothing to do with the breach.

    Using the same link=breach logic you could also ban London buses when someone sings a Wham song in a bar in Magaluf.

    Edit: I see Phil above has explained it better than me

    1. Schultz
      Go

      Silly rules?

      "Using the same link=breach logic you could also ban London buses when someone sings a Wham song in a bar in Magaluf."

      Nooo, you got it all wrong. You have to make everybody pay a licensing fee to ride the offending bus when they hear the offending Wham song on speakerphone from the bar in Magaluf.

      Win-win: The riders are happy (Music), the copyright holders are happy (Moneys!), Orlowski is happy (Copyright done Right), the weather is sunnier (in Magaluf, wherever that is), and the bus driver is unhappy, as always, so that's not your concern.

    2. Version 1.0 Silver badge

      Re: silly rules

      "The link has nothing to do with the breach."

      This is the point that law makers and enforcers have studiously ignored for years because it's far easier to bust the link maker than find the person who is actually committing the offense.

      1. Anonymous Coward
        Anonymous Coward

        Re: silly rules

        "This is the point that law makers and enforcers have studiously ignored for years because it's far easier to bust the link maker than find the person who is actually committing the offense."

        Or they can't REACH the actual offender due to sovereignty issues (eg. the publisher's country doesn't respect the EU's copyrights).

    3. swampdog

      Re: silly rules

      What about if the content is removed and the link still exists?

      That, to me, is the best way to highlight the silliness of it. Moreover, if someone posts a link to legit content but that content is then replaced by illegal content (or vice versa) then how would that work?

  7. Anonymous Coward
    FAIL

    And the worst part..

    The party who truly violated copyrights, those who put those pictures online in the first place, are fully ignored. And the pictures remain as-is, because it's that hyperlink which is the root of all evil here.

    See no evil, hear no evil... Ignorance and in my opinion plain out stupidity at its finest.

    1. Charles 9 Silver badge

      Re: And the worst part..

      "The party who truly violated copyrights, those who put those pictures online in the first place, are fully ignored."

      Sometimes, it's not so much that as they're protected by foreign powers. The international nature of the Internet means this tends to happen more often.

  8. Frank Zuiderduin

    Wrong way around

    Oi! You got so confused, you switched the roles of Sanoma and GS Media!

  9. Dan 55 Silver badge

    Barking up the wrong tree?

    Perhaps what should have happened is 1) a DMCA request to FileFactory and then later via the courts 2) a request for the user details of whoever uploaded the content to go after them.

    Of course, FileFactory couldn't give a toss and the uploader's account is probably full of fake profile data anyway.

    The ECJ ruling is trying to balance three things:

    1) As mentioned above, links themselves don't infringe copyright any more than bookmarks or the address bar do.

    2) It's usually easier to go after the website with the link than the website with the content.

    3) Websites with pages after pages of link to copyright content stored off-site in lockers who are obviously taking the piss.

    1. DavCrav

      Re: Barking up the wrong tree?

      "Perhaps what should have happened is 1) a DMCA request to FileFactory and then later via the courts 2) a request for the user details of whoever uploaded the content to go after them."

      Dude. This is the EU. DMCA is US law. I'm not sure why you think one matters to the other.

      1. Fatman
        Joke

        Re: Barking up the wrong tree?

        <quote>Dude. This is the EU. DMCA is US law. I'm not sure why you think one matters to the other.</quote>

        You must have forgotten that Team America acts as the World Policetm.

        'Merkin law applies world wide.

      2. Adam 52 Silver badge

        Re: Barking up the wrong tree?

        FileFactory are based in Hong Kong, so neither US or EU law applies.

        1. Dan 55 Silver badge

          Re: Barking up the wrong tree?

          Yet they offer a paid-for service to US residents so they do have a DMCA takedown procedure.

          1. Charles 9 Silver badge

            Re: Barking up the wrong tree?

            "Yet they offer a paid-for service to US residents so they do have a DMCA takedown procedure."

            Not necessarily. The service is based in a non-US jurisdiction. If the US government sends them a takedown notice, they can respond that Hong Kong's (and thus China's) sovereign laws do not respect these notices. What can the US do then?

  10. juul

    Copy protection for links

    How would copy protection for links work in the real world.

    would I as the author/owner have to include some kind of tag, that states that every one have the right to use the link.

    or would the potential user of the link have to mail me, and request the right to use the link?

    1. DavCrav

      Re: Copy protection for links

      "or would the potential user of the link have to mail me, and request the right to use the link?"

      I think everyone who wants to click on the link should have to send a letter to the owner of the target address asking permission to click on the link. Permission would normally be granted within 28 days by return of post.

  11. Indolent Wretch

    So according to the author...

    ... said that hyperlinks should not fall under copy protection

    ... this caused a shock wave

    ... (as) it meant EU works were not protected by copyright in the EU

    Which is hyperbolic, click-baiting bollox.

  12. Pat Att

    Umm, what?

    I recommend any interested party to seek a less biased review of the judgement than the one presented here.

  13. John70

    Search Engines

    Then we come back to search engines linking to copyright material on the Internet...

    Arn't the likes of Google, Bing, etc in breach of copyright?

  14. The Nazz

    Am i missing something here?

    The article ends with an hyperlink , "you can find the press release *here*".

    So by the logic of the article, that is an instant breach of copyright ( of the press release)?

    Regardless of whether or not The Reg has sought and obtained express permission to make such a link.

    Suggested exception to any laws : Please ban ALL hyperlinks within Twitter.

    Edit : Just as most El Reg articles do, surely they don't obtain permission for every single one of them?

  15. heyrick Silver badge

    "Wathelet said that hyperlinks should not fall under copy protection. This caused a shock wave around rights-holders since it meant EU works were not protected by copyright in the EU."

    How in God's name did you manage to reach this conclusion?

    Let's say there is a site, call it X, that contains a copy of whatever superhero crap the Americans are peddling today. Now let's say there is another site, call it Y, who says "hey, you get a copy of TheFantasticWhoGivesACrap from X".

    What do you have? I'll tell you what you have - X with a pirate copy of a film, and Y pointing out that X has a pirate copy of the film. It could be argued, perhaps, that if Y knowingly posted a link to a ripped off film then this might make them an "accessory", however the problem here is the "knowingly" part. Sure, in the latest blockbuster it might be obvious, but what if I post a link to "It's A Wonderful Life"? Well, the colourised version is under copyright. The mono version? Depends where you live.

    Then consider sheet music. Is it acceptable to link to a PDF of scans of music written by a guy who's been dead a couple of hundred years? Apparently not, as it seems some publishers make tiny alterations (to a work somebody else created) so they can stamp their copyright on it and identify it as theirs.

    So back to the original point. What do we have? A clearly infringing work, and a link. A link is not an infringement of copyright, not in any sensible manner.

    Perhaps if companies stopped wasting time and resources on rubbish like this and actually concentrated on hammering the infringer, this question wouldn't arise. After all, if there's no pirate copy, there's nothing to link to. Duh.

    1. Charles 9 Silver badge

      "Perhaps if companies stopped wasting time and resources on rubbish like this and actually concentrated on hammering the infringer, this question wouldn't arise. After all, if there's no pirate copy, there's nothing to link to. Duh."

      HOW? When sovereignty gets in the way? Take FileFactory, which is based in Hong Kong, which is in turn part of China, who probably couldn't give a rodent's rear end about whether or not it's infringing on content from rival powers.

  16. Jon Jones 73

    "...since it meant EU works were not protected by copyright in the EU" That's not true though. Of course EU works have copyright protection in the EU.

    1. Andrew Orlowski (Written by Reg staff)

      In theory but not in practice.

      You would need to use tort law to obtain an injunction against an infringing site, because the right to communicate would triumph. There would be no recourse to copyright law, therefore "copyright protection" ceases.

      Read carefully - you will be less confused.

  17. a_yank_lurker Silver badge

    Clueless in Brussels

    It sounds like the EU Court of (In)Justice has heard of this wonderful invention the computer and the Internet but have never used either.

  18. dan1980

    What about a simple text rendering of a URL, rather than a 'link'. A link, after all does actually forward someone to the destination: a link just relays a simple piece of factual information.

    1. Charles 9 Silver badge

      Now you're making an argument. Something a computer can process on its own to lead you into trouble is one thing (there's the possibility it happens without your direct action), but if it's just a plaintext, then you've made it the equivalent of the address scibbled on a slip of paper (now human interaction IS required).

  19. Naselus

    Bootnote error

    There seems to be a misprint in the bootnote. In the article, it says:

    "The arbitrary nature of EU justice was what prompted Boris Johnson – not hitherto noticed as a Eurosceptic – into taking a leading role in the Vote Leave campaign."

    This should, of course, read

    "The desire to embarrass fellow Etonian David Cameron and in doing so seize leadership of the Tory party was what prompted Boris Johnson – not hitherto noticed as a Eurosceptic – into taking a leading role in the Vote Leave campaign."

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