European court says linking to illegal content is copyright infringement
searchengineland.com
searchengineland.com
The decision said that a link to illegal content can be illegal in itself when 1. it's done for monetary purposes, and 2. when the person creating the link was aware of the illegal nature of the content being linked.
But who would have doubted about that? Did you really think you could create links to illegal content for money and get away with it?
On the other side, it clarifies the fact that a link to illegal content will not be illegal if it's done for free, or if it's done without knowing the illegal nature of the content being linked.
To quote the decision : "it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed."
From my perspective, it's a good decision.
Yes, and that's a horrible ruling. Almost everything can be construed as "for money". Are you a newspaper with paid subscribers? Everything you link is "for money". Do you have a Google ad on your hobby blog? Technically, you're getting paid for it. Someone will make the argument that you're driving traffic to your ad-sponsored blog by linking to infringing content, so obvious you're profiting from piracy.
It's also ludicrous to pretend that the linker is guilty of the crime. If I link to Silk Road and you go there to buy drugs, I am not involved in the transaction. I didn't buy drugs. I didn't sell drugs. I had nothing to do with you ordering drugs other than telling you where they were.
Google links to things that are illegal all over the place. Should they be guilty of linking to Muhammad cartoons because that's taboo in certain countries? Of course not, even if they get paid for it.
Was this really the best example you could come up with? Because that's clearly the law working as intended.
How are those things in any way comparable? Knowing the chemical formula of a drug doesn't get you any closer to possessing it, but knowing the ID of a torrent lets you immediately download it.
At the end of the day, would you want law to be based on technical trivia, which can rapidly change, or do you want it be based on the intent of the persons involved?
Both require that you know where to go, and use a third party search system to find the people that actually have the illegal material.
At the end of the day, I want the responsibility to be on the people actually performing illegal distribution. And when someone provides a listing of what is available illegally, without who or where to get it from, that should be legal.
In your opinion, if someone writes a highly-convincing page encouraging you to smoke opium, is that intent okay? Because to me that seems about equally far-removed from any drug crime as your typical torrent search engine is from infringement.
When you go on the dark web and buy something illegal, the money goes to the seller, whereas presumably nobody is directly profiting from the torrents.
Common sense. A pirate bay clone would still be knowingly and intentionally distributing links to infringing material, whether or not doing so without a financial incentive is illegal depends on the jurisdiction.
So: common sense doesn't enter into it.
And the user had to previously choose how to route these requests to 3D printers through a completely independent application. The original site itself doesn't make the IDs do anything. By default clicking those magnet links does nothing at all. A UPC code is a good analogy.
So the printer is clearly doing illegal things. But is the original site illegal because a totally different person automated drug-buying? And it's not a pachinko setup either. These are truly independent actors.
Good luck selling that line of argument. You might have an argument if the protocol actually did trigger off of unlinked UPC codes and sites didn't have to construct special links that conform to a standard (in which case you could download movies by browsing Amazon or IMDB). But if a site publishes magnet links there is no denying knowledge of what those links do. Or I guess you could try to deny but no judge or jury with an IQ over 50 would believe it.
I'm sure I can find plenty of 5 star weed reviews that nobody would call illegal, even though they're calling out specific brands in a way that someone could trivially turn into a purchase.
I don't think causality is the right metric here, rather it's the fact that you're facilitating a criminal act -- you're making it easier for someone to break the law.
The proportional amount by which you facilitate the action ought to matter.
If a drug is going to cost you $50 and all I did was point you in the right direction, you still need to cough up another $50.
But if finding the right link and downloading some tool is all I need to do, then by providing the link you've taken me at least halfway, and maybe more if I already had the tool.
Your efficiency tools should not make my actions more illegal.
Why would you expect that to be an invariant in the legal system?
Your actions take place in the context of the world; the context should affect how someone judges your actions.
The key point is whether you personally know (and if the prosecution can show it) that providing a link is tantamount to allowing someone to easily download it.
They even encourage people going to youtube and watching illegally uploaded videos!
The safe harbor doesn't come for free, it requires affirmative action on the ISP or Youtube's part to take down content that they know is illegal.
Any hypothetical torrent-sharing site could take advantage of that protection as well, as long as it followed those take-down provisions.
Power companies and roads facilitate a whole lot. Zero legal responsibility there. You could make a pretty good argument that a road is responsible for quite a large proportional facilitation when drugs are bought.
If you hypothetically ask me to make you a cup of coffee and it helps you stay awake so you can go commit a murder, I shouldn't be going to jail for that, unless my intent was to help you commit murder; and even then, I probably didn't help you very much.
On the other hand, if you come to me and ask me for the number of a local hitman, I should have a pretty good idea that I'm aiding and abetting in something illegal.
If I merely let you access my directory of all the people in town sorted by job, there probably wouldn't be an issue.
A search engine is not a human. It can't be expected to preemptively filter out suspicious results. Google certainly doesn't.
In the end I just don't think it's right to shut down a site because of its userbase. We don't shut down roads when most of their traffic is criminals. And there's nothing inherently illegal about torrent search engines.
Do you have an example of a road mostly used by criminals which the relevant authorities aren't trying to shut down? One where the criminals aren't actively bribing the authorities, obviously.
And if there was a tool that would pop out, at no additional cost, an instance of the drug based on the chemical ID, I'm fairly sure that it would be considered distribution. If it wasn't, then within short order, the law would likely be changed to fix that loophole.
Forget about thepiratebay. It's children pocket money.
Remember the time of RapidShare/Megaupload? They were paying something like $5 per thousand downloads.
Let's imagine a popular DDL/streaming site sending one video. The next week it's been downloaded 100k times. That's $500 easy money for one upload.
Multiply that amount of money by the amount of movies, of tv show episodes, of video games (whose 20GB are split in 20 separate files).
That was the hell of a business model.
Now, let's think about the modern streaming sites. It doesn't monetize that way anymore. Instead it's putting aggressive ads on every fucking page + misleading widgets opening ad popups + affiliation with streaming services + useless redirection so visitor are forced to open more pages.
Illegal download/streaming are a very lucrative business and that's why there are so many of it. Noone is talking pennies there.
That hardly seems like "nothing", if you're giving specific directions.
So why do people have Google ads on their hobby blogs? Could it be that it's actually for money, not just "for money"? If it's not for money, why even bother running ads? Sounds to me like a pretty good indicator of intention.
If you want to run a blog as a hobby, great. Spend your own money to buy hosting and be done with it. If you want to generate revenue off your hobby, that's fine as well, but know that it's not purely a "hobby" anymore. Even if the amounts are small or you're not profitable, it doesn't matter.
EDIT: Sibling comment may be more accurate. If you show non-profitness, (I'm speaking abstractly, not in relation to linked court decision), that would be enough to sever the link between the otherwise infringing links and your revenue.
I run ads because I'd rather not pay out of pocket but I hardly consider it as something that makes me money for the sake of making money.
2. If your question is to know wether a journalist would be concerned by the decision, it's easy to see he would not.
3. If the linker is linking to illegal content knowingly, and because he hopes a gain from it, I don't see how he would not be guilty. In your example, you would be guilty as hell.
4. Google don't know what is legal and what is illegal as long as nobody told them. They're protected in Europe as intermediaries by the Directive at least.
A VC-sponsored tech chat website has monetary value.
but this ruling also catches all search engines with advertising..
Perhaps I could send a message somehow to some Google exed to remove a bunch of links that are to illegal content, wait 2 weeks then claim that was sufficient notice for them to be aware of the content and therefore meet requirement #2.
To be fair, I didn't dig to see if this second requirement is clearly defined.
Such linking is, as your quote says, not infringement if it is done without pursuit of financial gain and is done by someone who does not or cannot reasonably know the illegality of the linked material. In other words, they decided that linking to illegally published material is copyright infringement if it was done for commercial purposes or by someone who knew that the linked material was illegally published.
The court also concluded that, if the linking was done for commercial purposes, it must be presumed that the person publishing the links knew that the linked material was illegally published.
So... no more search engines, then?
When I go to Best Buy I just assume they have licenses to all the movies they are selling.
For copyright infringement, distinct from theft,it has never been the burden of the consumer to know who has a license to distribute.
Europe really doesn't like Google.
The court also said that these are requirements in the future.
So, if I link to a page on a forum of my blog that becomes illegal alter, neither of the requirements are fulfilled. No problem. Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling.
That is how I have understood it
Next you'll be wanting trials instead of summary rulings.
https://en.wikipedia.org/wiki/Trusted_timestamping
EDIT: There's also newer ones that pull the site for you like a MITM to do what we're saying. Startups come and go, though, so I recommend scripted or manual scraping combined with long-running notary who will have evidence when trial happens. :)
I'm thinking in purely technical terms here, and that I can easily argue that such evidence is inadmissible, unless there's a certain number of independent, trusted snapshot services that would archive each link too, and allow one to compare the decrypted archive. To achieve that, one would probably want to use an indirection for linking so that such archives do not have to archive everything that exists, but just those that go through said indirection.
Then, the last question is how many independents you need to put trust in the verification, considering that motivated attackers could circumvent, say, the 3 most used archiving services. Or you could bind the archival of a link in a federated number snapshot services to a consensus algorithm. Then you'd ask yourself how many networks (which consist of multiple services) you'd trust.
2. The notary could make their archive public, so that any interested party could go through and verify that it is legit.
3. By using many different notaries the chance of any one of them being bad would be reduced.
http://www.surety.com/digital-copyright-protection/prove-own...
You publish the hash chains with signature in places you can't retract. They use New York Times for instance. Far as their sigs, they can use one or more HSM's. One or more atomic clocks plus high-quality NTP for timing. Open-source client checks all of it right after it happens, maybe keeping local copy. Every other aspect is just standard INFOSEC.
I dont have time to answer the last question right now. Off to work. :(
It's not what was at the sender though, surely, it's what gets sent to the client. Each client receives different content (at some level).
If I paste a 'forbidden' link to my blog that I've never followed, and no-one ever views the page, surely that's not a crime??
Exactly, and now imagine how easy it is for someone motivated and with the right resources to meddle with that.
Similarly, it's hard to prove a machine was used by its user to consciously navigate to an illegal link. There's too much automatism on the web and on networked machines, plus if we consider link shorteners, there are too many explanations against that would not allow admitting evidence like machine-x-owned-by-mike-miller-accessed-mp3forfree-artist-album-2016.pdf.
It's the equivalent of me walking in a street where I didn't know drugs or weapons or humans were sold, and being arrested for just walking through there. In real life you have some clues where not to go, especially if you're from the town, but on the internet it's too easy to have your machine load a random illegal link or search alarming terms on Google without your consent.
It could bring you into more problems than you started with.
Of course, that may be considered bad for the internet, because most people, as long as they are not the victim, like to see leaked nudes and download stuff for free, and the internet has grown in no small part because of this.
I think that now that the internet is mature as it is, some limits are necessary to keep things fair and protect people from the mob, and the internet will live on nonetheless.
Like the Norwegian piece the other day about the famous Vietnam war picture that Facebook considered nudity this is yet another signal that local law and culture needs more consideration by the big web publishers.
The problem is, if you have a different internet in the US than you do in Europe, China and Saudi Arabia then it isn't the internet anymore. There is no way to do that and still allow people in Europe to communicate with people in the US -- otherwise they could just forward each other the censored information (and set up automated systems to do the same).
The more you censor the more popular the countermeasures become until either everyone is using them and the censorship is completely ineffective, or we're all living in the sort of communist police state necessary to prevent that.
And there is no point in engaging in censorship that is completely ineffective, so what you're really proposing is the police state.
But instead of applying US law globally, we might want to instead apply EU or Chinese law globally.
It can’t be that laws that only 300 million people can vote for are applied to billions of people.
It's so sad to see it perceived as an imposition by authorities. Not wrong, just sad.
But you should look up the history of copyright. The Licensing of the Press Act of 1662 (https://en.wikipedia.org/wiki/Licensing_of_the_Press_Act_166...) was essentially a censorship law. Copyright is censorship of a sort.
The Licensing Act you refer to was a censorship law, not a copyright law; it IIRC doesn't protect authors rights nor give them primacy as the creators of [copyright] works.
But copyright is a social contract. It needs people to believe in it far more than it needs people to be forced to follow it at gunpoint.
Aggressive copyright enforcement is counterproductive because it trades a small increase in the cost of defecting for a large increase in public disrespect for the social contract which is what causes people to be willing to defect.
Your "freedom of speech" is still only allowing what your culture wants.
The internet is something where all cultures collide, so giving any one culture control is just stupid.
What's communist about this?
Soviet Russia, East Germany, China. Now name a libertarian police state.
Why did you insert the word "big" in front of "commercial sites"? There is no such qualification in the court's ruling.
Every small blogger who makes a little money through ads now has an obligation to check whether or not the owner of every single linked page owns the copyrights to the content they publish (or will publish on that page in the future).
I have no idea how anyone could possibly perform these checks. Do you ask the linked site for proof? But if anyone is going to find a way through this legal nightmare it's going to be the very biggest players with big legal departments.
FWIW you don't usually, in copyright, have to make money for a site to be considered commercial. Depriving another entity of the ability to fully profit can be enough, or even advertising something you're not directly profiting from.
That isn't what the ruling says: you can still assume content is legal. Only when you know (or "should have known") it isn't do you need to unlink it.
In this case, geenstijl.nl (which is a professionally-run news site that likes to troll and stir up anything to get traffic) repeatedly linked to leaked playboy pictures uploaded somewhere on the internet. There was no way they could claim innocence. They expressly and repeatedly decided to link content they knew was illegal and would get them a ton of traffic.
That is simply incorrect. Here's what the ruling says:
When hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published.
"Carry out the checks necessary" means that you cannot simply "assume content is legal".
Now it is a passing reference to how to find it -- but your criteria that 1) they made money from it, and 2) they could know and should know that this content is illegal.
Well, all right. So let's say that is contributing to copyright infringement. Let's make it illegal.
Now what if we change the passing reference to be "the pictures are pretty easy to find via Google." What if we imagine that this is how the reference now reads.
What now? What if it's illegal and what if the site makes money off of it?
How about Hacker News. It is a statistical certainty that at least one reader decided to find the pictures based on our report here. It's certain. With absolute certainty you can say that someone searched and found the pictures.
Does YCombinator get value from the fact that this report contributes to interesting information being available here? Absolutely.
So, should Hacker News be allowed to report on this court case as explicitly as it has done?
Remember: it is absolutely certain that some people have found the pictures as a result, and it is also absolutely certain that they would know this would happen. They directly benefit from it.
So where does it end?
A good place to draw the line might be: reproducing content. Since, you know, that's what copyright ... wait for it ... actually limits...
Intention and knowledge is the best dividing line, in my opinion, and courts certainly take it into account. HN blindly reproduces what people post, whereas the link in question was posted by the site editors themselves - that's a clear distinction, and in fact many lawsuits (in the US) were based on it.
I do disagree with the court's decision to presume that any publication for financial gain is done with knowledge of the copyright status, though.
There are 100's of these on HN already.
Just a few samples:
What I meant with my comment is that a pretty clear example of copyright would be, for example, hosting and including the copyrighted content. (If the content is literally on the hosting server - posting full text is obviously an example of this. Hosting full images is another example.)
A less clear example would be hotlinking. (So that the pictures are loaded and shown by the browser, and it appears to be part of the article, but is in fact an offsite image anchor.)
An even less clear example would be a URL link. That is what we're reading about. But What if it's not clickable? (hxxp:// whatever(dot) whatever - replace hxxp with http and (dot) with . -- what then?)
An even less clear example is telling you explicitly what Google search to search for, and how you can know that you've found it. (e.g. words like "Search Google for leaked playboy pictures from 2011, and click on the first link, which should be a site named after a fish." - I'm making this up.)
But a less clear example still would be "It's easy to find. Just search for [vague reference but one that is clear enough]"
So you want to use the standard of "mens rea."
How can we REALLY judge what someone's reason might be?
For example, it could be that the real reason to report on something is so that interested readers might find it.
Example: "The Pirate Bay is now hosting the entire (name something)". It could be that the primary reason to say that is that it provides people information that they can immediately use to start infringing the copyright of (something).
But what if it's couched in any other report?
"What the fact that the pirate bay is hosting (something) says about democracy and our copyright laws"? Should that be an illegal post to make?
You understand what I'm saying. It's an extremely slippery slope.
But one very, very clear line is: "are you ACTUALLY yourself hosting the content"? Because if not, then there's an actual target to shut down.
I guess it's like the difference between selling drugs, and saying "you know you can just ask the kids hanging out on the corner of 6th and 8th streets, they'll hook you up." Whether that latter shows criminal conspiracy or whatever, it doesn't really matter - you can actually just shut down the kids, you don't have to shut down the free speech around it or judge mens rea.. . .
Personally, I think not having mens rea as a standard is killing any possibility of user-generated content, since any such site could be convicted if any of its users posted an infringing work. The Safe Harbour provision is one of the few good parts of the DMCA, but it requires judging mens rea, and once you have to judge that, adding linking doesn't have bring any further issues.
In Brilliant v. W.B. Productions Inc., the court ruled that the phrase "I may not be totally perfect, but parts of me are excellent" was copyrighted. Under your black-and-white standard, without judging intention, HN would now be guilty of infringement. How could it continue to exist with this threat?
Mens rea might be hard to prove (and presumption of innocence should be applied), but strict liability becomes absurd.
Let's make it explicit. The Pirate Bay is a common site for piracy, so I went there to get you this link:
* https://thepiratebay.org/torrent/15706308/Captain_America__C... <---- this is the line that starts with an asterisk
What I did was go to the site, then I clicked "top 100" in the header, then I clicked "video | movies" and it was the second link, called "Captain America: Civil War (2016) English BrRip 1080p x264".
Actually you can also find it by googling "Captain America: Civil War (2016) English BrRip 1080p x264" and adding "site:thepiratebay.org" to your query.
Okay, now let's dissect what just happened.
Level1: Firstly, under traditional interpretations of copyright law, the entirety of the present comment (the whole of this comment you're reading) is not infringing on any kind of copyright. I didn't even quote your purposefully short problematic phrase, which you chose because it has been found to be worthy of copyright protection despite its brevity (i.e. similarly protected as a longer work, such as a novel or article). There's nothing copyrighted in this comment, I just authored it out of thin air. I didn't reproduce anything, or include the phrase you held to be protected. I typed it all as a new work.
Level2: Next: I've actually included a link to infringing materials, though. Now am I guilty of some kind of accessory to copyright infringement? My link is actually similar to the article we're discussing. This "level 2" infringement is occurring in the present comment, but if I were to remove the line that starts with an asterisk it would no longer be level 2 infringement. There would no longer be any URL in this comment.
Level3: But, thirdly: what if you remove my link? I've still given you enough information to get to it exactly. The line immediately after the asterisked line tells you exactly how to get there. It just adds 15-45 seconds of inconvenience versus a simple click, and maybe a 20-50% chance that you fail to follow my instructions if you choose to try to do so.
In fact, other than the level-1 line in the sand (which this comment doesn't cross, since I'm not reproducing anything including the short problematic protected phrase you quoted) the rest of the lines in this comment are completely and utterly murky.
Okay, so you've given a tangential example where your comment actually crosses the level-1 line, due to reproducing the phrase "I may ...excellent". Obviously that is an extreme example, but we don't really need to discuss it. Because this present comment (that I'm writing) does not cross that standard. It does, however, cross the level 2 and level 3 standard.
And those lines are murky as hell. There is just nothing there to draw the line at: "THIS is what you're allowed to write; THIS is what you're not."
It has nothing to do with reproducing content - it's about reference to where copyrighted works are available.
I welcome your thoughts as you do know more about this than I do however.
Maybe, but remember that a little knowledge is more dangerous than none, and it's all I have :)
That said, from what I can tell, I don't think it's murky - according to the court, all of those levels would be infringing.
You're saying that if I were to say "it's easy to find a blue ray rip of Captain America" (this is the whole of my reference, exactly in these words) then I would be guilty of copyright infringement? Because that is one of the lines in the sand. I don't see it. But telling you what to Google is nearly that.
Only because "Google" chooses not to. Execs in control of what Google links to know that it links to illegal/tortuous/immoral content -- leaked nude images, say -- they make money from advertising alongside those links and by inclusion of such links so they can provide a 'comprehensive' search.
Google will get a pass though, too big to prosecute. The result of that is there will always be a place to find such content.
It's inequitable -- and hence contrary to democracy and the rule of law -- to convict someone of providing a link without also convicting search engine execs whose SE provides the same link. It also makes the process futile.
Those people have the same way of knowing what's unlawful or illegal or tortuous as the rest of us; actually they're more likely to be able determine it IMO.
Google link to iTunes, iTunes provides a means (CD ripping, yes, for real) to circumvent UK copyright law ... go on tell me Google's lawyers don't know this essential basic of UK copyright nor that you can find iTunes (designed for copyright infringement!) on Google.co.uk.
It's not like any of this is being done to serve the public interest, it's solely focused on narrow commercial interests.
I do get the intent here, but it absolutely misses the point.
Edit: The ruling acknowledges the target is mutable, but it also says that the poster of a link on a page that's for-profit must check the target content. However, I cannot find anything how one should prove it was legal at time of linking. The only sensible thing I can find is that once notified a link has to be taken down. Did I miss something?
Until that one case where they do, and you're on the other end of it. Hoping for a sympathetic reading of the law is not recommended.
That’s all it says – this website is again blowing everything out of proportion.
> it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
[0]http://curia.europa.eu/juris/document/document.jsf?text=&doc...
That they do this through a third-party host shouldn't be that important.
But hey, this is just the opinion of some random dude on the Internet.
Still, the 30m for a single joke might be infringing, yes, but so what? If it would be infringement if they served the video from their own servers, why shouldn't it be by embedding from YT?
Because then the infringement, if there is one, is YouTube's and not the linker-to-YouTube's.
Since a link doesn't take anything from the original work - it only references where the work may be found - then this amount is zero.
Anyway, how does that "specifically address" GP's question about mutability? That isn't even mentioned in the bolded text.
There are other more unambiguous statements acknowledging existing case law which appears to rule out webmasters falling foul of websites' mutability like: The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work
in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work
Anything already in a public index should not be illegal to point to.
And that’s where courts will just classify you as noncommercial.
If you don’t make enough with it to finance your lifestyle, it’s very likely not really commercial.
I'm not sure what a court would think about 10€/m, but I guess 100€/m would be considered commercial.
EDIT: the common description of being commercial in Germany is: a planned, longer term acting to make money - it's not even necessary to make a profit. Source (in German): http://www.it-recht-kanzlei.de/verbraucher-unternehmer.html
You can’t sue the parents of a kid selling lemonade in their frontyard, even though it’d technically be a violation of the Lebensmittelverordnung.
Just like a small webblog which does not even qualify as Nebeneinkunft, and which is not taxable, would also be not relevant for such a case, unless you published it knowing it was illegal to make that money.
The ruling is on a matter of law. It isn't a ruling on the guilt of GeenStijl, or anyone else that shares links. It gives the referring court instructions for how to interpret the EU copyright directive, specifically on whether the criminal act of communicating a work to the public without the consent of the copyright owner had occurred.
The Supreme Court of the Netherlands (Hoge Raad) asked the Court of Justice of the European Union (CJEU) to rule on in what circumstances should sharing links to infringing content be considered a "communication to the public", with specific attention to how the decision is effected by the prior availability of the content and whether the person sharing the links knew the content was infringing.
The ruling of the CJEU was that when somebody knowingly shares links to infringing content for money, it should be presumed that they knew the content was infringing. This is not strictly an answer to the question, IMO, but it does establish criminal intent.
It is being generally reported that commercial infringing linking has been generally ruled to be "communication to the public". I don't think that's the ruling, although the part of the judgement that isn't the ruling does say that. It would be interesting to know whether the whole judgement, or just the ruling at the end, is considered binding. I tend to assume the later, since the ruling is a repetition of the last paragraph of the judgement, and why would that happen if the judgement was binding?
(Edit: Removed lots of unnecessary words.)
https://www.techdirt.com/articles/20160908/11305735465/terri...
Two relevant portions of the court's judgment (my emphasis added to the latter):
> In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
> or whether, on the contrary, those links are provided for such a purpose, _a situation in which that knowledge must be presumed_.
In the same way a drug dealer has no idea what's in his stash; they know exactly the sort of thing in there, roughly how much of it is there but not the very specific details.
In fact google just doesn't want to moderate illegal content. It doesn't even remove the websites with infringing material, only single links.
A previous ruling of the CJEU covered a similar situation to your hypothetical, and ruled that once something is made freely available to the general Internet by the copyright holder, they lose the right to control who can link to that content. Of course, they retain the right to control who can copy it.
YouTube has a system in place for reporting infringing content. It's not necessarily very effective, but it's better - from a legal standpoint - than being told repeatedly that content is infringing and but intentionally and knowingly republishing links to the content each time another set of infringing copies gets taken down.
This ruling will take about 20 seconds before it is abused for profit.
You’ll get laughed out of every court.
Remember, the EU does not operate under common law, but civil law, so the value of a precedence case is already limited.
In such a case, more specific interpretation is definitely necessary.
Apparently not, if other courts agree with this one.
Second, the court made a ruling about the application of a law in a specific set of cases:
A company takes a link which they know points to illegal material, and publish it, for the intention of making profit.
Third, this is Civil Law. NOT Common Law. Precedence means nothing.
So, if that was actually true, due to (3), Google could have been sued thousands of times before, or Movie4k.to or so on – but they haven’t.
Even kino.to could only be sued because they paid the uploaders of illegal movies money – not because they linked to them.
Second, this specific case here doesn’t even apply to almost every other website.
The argument is "because they published it and claimed exclusivity to make money, they had to know it was illegal".
Which means if you have user generated content, standard C&D or DMCA stuff applies, and only if you violate that, it can be infringing.
>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, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
That last sentence is a bit hard to follow, but it appears to say that linking to freely available third party content constitutes a communication to the public of the freely available third party content only if financial gain was pursued by the linking party when they understood the third party content to be "illegal".
It is a seriously bad construation to infer that communication of public names (URLs) is a "communication to the public" of the actual third party content, unless the URL was designed by the third party for said content (however, in such case, the content was already communicated to the public by the third party).
> EU Supreme Court: Hyperlinks are legal, even when linking to illegal publications
https://www.privateinternetaccess.com/blog/2016/09/eu-suprem...
Interesting how the law is so perverted that irrational seems to be the norm.
also second part can be optional I guess, but i think it heavily influenced the decision on this case
If that were remotely true somebody better tell Google quick.
The European Court is asked by the local courts how to interpret European laws. Otherwise why should the local court should have asked the European Court in the first place?
I don't have a better source than Wikipedia at the moment[1], but local courts will likely orient their decisions on this one.
[1] https://de.m.wikipedia.org/wiki/Europ%C3%A4ischer_Gerichtsho...
In this case the _actual_ ruling is about linking to content that you know is illegal, but you still intentionally link to for monetary gains. Any reasonable court, or person for that matter, would go "oh... yeah that's obviously a VERY DIFFERENT matter from this article's claim, and punishing someone for that is kind of reasonable."
"Illegal" content is anything that the source does not want distributed, and this ruling could make it quite hard for news sources to link to places like wikileaks.