
European court says linking to illegal content is copyright infringement - iamben
http://searchengineland.com/european-court-says-linking-illegal-content-copyright-infringement-258442
======
soufron
That's not what the decision said. At all.

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.

~~~
kstrauser
> Did you really think you could create links to illegal content for money and
> get away with it?

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.

~~~
0x0
> Everything you link is "for money". Do you have a Google ad on your hobby
> blog? Technically, you're getting paid for it.

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.

~~~
plandis
I use ads on my hobby site to pay for my hobby site. I make like $10 a year
off of it.

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.

~~~
0x0
When you have ads on your hobby site, do you ever stop to think about how your
content affects ad traffic and revenue, or do you never ever think about the
banners that you run? Genuinely curious.

------
rahkiin
I agree, this is bad for the internet. However, some context is missing: The
case was in the Netherlands, regarding the website GeenStijl linking to leaked
playboy pictures. The court said that 1) GeenStijl made money from it 2) they
should and could have know, and most probably knew, that this content was
illegal (because they posted it as 'leaked nudes!!'). The combination of these
(earning money from content that is known to be illegal) was what made the
decision.

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

~~~
cm3
I hope that's the case, and I didn't read the legal text, but how would you
protect yourself against that? Would we have to keep tamper-proof screenshots
(or archive.is-like snapshots) for each external link posted?

~~~
unicornporn
Screenshots are terrible proof. They were however used in a Swedish piracy
court case many years ago. That led to someone building the "proof machine"[1]
which created screenshots of BitTorrent clients with any IP you entered. Try
it:

[1]
[http://lekplatsen.org/bevismaskinen/](http://lekplatsen.org/bevismaskinen/)

~~~
amelius
See also:
[https://en.wikipedia.org/wiki/False_evidence](https://en.wikipedia.org/wiki/False_evidence)

It could bring you into more problems than you started with.

~~~
unicornporn
Yes, this was a FTL proof of concept that was meant to show how worthless
screenshots are as evidence.

------
cm3
How can this work? A link is just a reference to a mutable destination and
there's no way to guarantee that what's pointed at stays legal after the link
was put up. It can change at any time and turn into something illegal, even
though the original content was not.

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?

~~~
seszett
Have you read the decision[0] though? It specifically addresses this.

> _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...](http://curia.europa.eu/juris/document/document.jsf?text=&docid=183124&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=755998)

~~~
jessaustin
IANAL, but my reading of that is _if_ one makes money from one's site (e.g. by
having ads) _then_ EU will assume that one knows whether or not linked content
is infringing. Because €10/month from adwords is totally enough to hire a
lawyer to evaluate every link that users post.

Anyway, how does that "specifically address" GP's question about mutability?
That isn't even mentioned in the bolded text.

~~~
notahacker
As far as I can see from the rest of the document, the reason why profit
motive is clumsily forced into that sentence is because it was argued that the
act of posting the link itself was an attempt to increase the site's revenue
_because_ the owners were aware the public would be interested in visiting
their webpage linking to the material _because_ it wasn't authorised for
publication anywhere at the time. Hence their decision to draw attention to it
with "leaked pics" headline and post-DMCA-takedown followup headlines
referring to the copyright holder whilst linking to new copies of the
material. In other words they're saying that a publisher that has demonstrated
awareness that a particular piece of material is so difficult to find that
they can generate extra pageviews and revenue from communicating the fact they
have a link to it, they can reasonably be expected to have carried out some
checks to the provenance of the linked material. We're talking about a
situation where the existence of the link and intimation that it might not be
authorised was the subject of a headline, not an entry in a directory or
search result. A natural reading of "links are provided without the pursuit of
financial gain" is that if the posting of hyperlink(s) to copyrighted material
is incidental to the profitability of your site you're probably not in danger
of falling foul of that particular directive.

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_

~~~
Natanael_L
Since links are just addresses that can be followed automatically, I strongly
disagree with the ruling that this applies under the cited precedence;

 _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.

------
parenthephobia
The situation is more nuanced than the article suggests.

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.)

------
jbuzbee
Techdirt has a good writeup on the new ruling. One of the good points made on
Techdirt, is regarding search engines which are obviously for-profit. How in
the world would Google keep from linking to material which is violating
someone's copyright?

[https://www.techdirt.com/articles/20160908/11305735465/terri...](https://www.techdirt.com/articles/20160908/11305735465/terrible-
ruling-eu-decides-that-mere-links-can-be-direct-infringement.shtml)

~~~
TheRealPomax
simple: google has no idea what it indexes. Please read the full ruling, which
explains this only applies to those who willingly and intentionally link to
content they _know_ is illegal, _and_ do so for monetary gain. Which is
perfectly reasonable. The article posted to HN is pretty much fear-mongering
for te purpose of getting some clicks.

~~~
jbuzbee
It's not that easy. What if the MPAA, Playboy, etc. send file filenames to
Google and say "It's illegal to link to this file and if you do so, you are
willingly and intentionally violating our copyright" Is that really what we
want? It's a slippery slope when courts make these rulings without really
understanding the impacts.

~~~
slavik81
"What if?" That's already what happens. Google puts up a notice that some
results have been omitted due to DMCA requests and links a copy of the
requests.

------
thght
Illegal content? I guess they mean copyrighted content? Isn't that pretty much
the entire internet? Even this comment is my intellectual property, so will
this make you a criminal if you link to this comment without my consent? And
isn't youtube making money of copyrighted content, or does youtube have a
special deal with the court that only they are allowed to do this?

~~~
parenthephobia
They mean unauthorized copies of copyrighted works, not _all_ copyrighted
works.

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.

------
imh
Can anyone tell if this is transitive? Let's say you link to a picture or
download you don't own. This ruling says you are guilty of infringement,
right? Now what happens when I link to your site? Am I guilty too? And when
someone else links to mine? Am I now responsible for ensuring the entire web
of links downstream of mine is not infringing? Or is there a criminal intent
thing here, so people like Google can still link to the pirate bay because
it's simply part of the internet?

------
downandout
So then Facebook can be sued if someone posts a link to my copyrighted
content? I hope none of my "friends" post a link to the picture I just took
and don't want on Facebook then. I wouldn't want to have to sue them.

This ruling will take about 20 seconds before it is abused for profit.

~~~
kuschku
> 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.

~~~
downandout
_You’ll get laughed out of every court._

Apparently not, if other courts agree with this one.

~~~
kuschku
First, _PLEASE_ read the ruling. It’s disheartening how many are discussing it
without reading first.

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.

------
ajnin
So now publishers must determine what is legal or not. They must do the job of
judges as well or better as them or risk the very very high penalties attached
to copyright infringement. This can only lead to defensive postures and
extensive amounts of self-censorship to avoid that huge risk.

------
danjoc
I don't understand why Europe and the US expend so much money and energy
upholding the very laws that allow the big players like Amazon, Apple, Google,
and Starbucks to evade taxes. The whole notion of 'intellectual property'
seems purpose built to evade taxation. How are these governments funding these
cases? With taxes. Taxes not paid by those who are benefiting most from these
laws. It's a negative feedback loop. The more they spend, the more they ensure
it is a winner take all scenario, and the more the winner will avoid paying
taxes.

------
jsprogrammer
>On those grounds, the Court (Second Chamber) hereby rules:

>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).

------
RossBencina
Funny, Rick Falkvinge took the opposite interpretation on the ruling:

> EU Supreme Court: Hyperlinks are legal, even when linking to illegal
> publications

[https://www.privateinternetaccess.com/blog/2016/09/eu-
suprem...](https://www.privateinternetaccess.com/blog/2016/09/eu-supreme-
court-hyperlinks-legal-even-linking-illegal-publications/)

------
golemotron
It's time to start calling this something other than copyright. It's evolved
way beyond the right to copy content.

------
geggam
So Yahoo! is a large corporation built on illegal acts ?

Interesting how the law is so perverted that irrational seems to be the norm.

------
bluesign
i think it means: "linking to illegal content 'knowingly' and 'making money of
it' is copyright infringement'

also second part can be optional I guess, but i think it heavily influenced
the decision on this case

------
koolba
> European court says linking to illegal content is copyright infringement

If that were remotely true somebody better tell Google quick.

------
elcct
So no Google and other search engines in the EU? Or as usual law will only be
applied to the small guys.

------
petre
European law isn't precedent based.

~~~
easychris
That does not mean that this ruling doesn't have any effect on future rulings
of "smaller" courts.

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...](https://de.m.wikipedia.org/wiki/Europ%C3%A4ischer_Gerichtshof)

------
Esau
My god, I love Europe, but they have some of the most brain-dead results when
it comes to decisions that affect the Internet.

~~~
TheRealPomax
Not if you read the actual ruling instead of an article turning it into
sensationalism with facts omitted. Always a good idea to get the facts before
you commit to making claims.

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."

~~~
jacquesm
If you take it as a given that any news publication is in some way or other
'for profit' and that all links are placed intentional some of the
sensationalism is warranted.

"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.

