
Europe’s top court mulls legality of hyperlinks - Tomte
http://arstechnica.co.uk/tech-policy/2016/02/europes-top-court-mulls-legality-of-hyperlinks-shockwaves-could-be-huge-for-web-users/
======
6502nerdface
> Europe's highest court is considering whether every hyperlink in a Web page
> should be checked for potentially linking to material that infringes
> copyright, before it can be used.

A hyperlink is just an address of some kind that client software interprets in
a certain way allowing users to easily send network packets to it. Whatever
response comes back to a request directed at that address is entirely
determined by whoever controls the address, and outside the control of the
publisher of the hyperlink.

So if one published, say, a phone book, with all of the addresses and phone
numbers of consenting residents in a city, when a reader dials one of those
numbers, or sends a letter to one of those addresses, it's entirely possible
that a reply could come back containing copyrighted material. Should the
publisher be required to check every address and phone number for such
copyright-violating replies before publishing the phone book?

The response that the controller of an address sends (if any) to requests sent
to it may change from request to request, for any reason at all. Would it be
illegal to publish a hyperlink to an HTTP URL that has a 50% probability of
responding with copyrighted material? 10% probability? 1%?

~~~
duncanawoods
For a different spin on that example, say you sold a directory of crack
dealer's phone-numbers called 1800-dragon-chasers. It seems clear its aiding
in a criminal enterprise and not a totally innocent knowledge product. I
wonder if you could be charged for that.

~~~
mr_luc
Right. But the point is that laws exist that do apply to your scenario; the
law would have to demonstrate that it's aiding in criminal enterprise and use
legal methods (maybe even an injunction).

However, newspapers let people place personal ads: "Pottery enthusiast seeks
friends. 555-1212, or write to 1010 Binary Lane."

Should the newspaper have to call that number, and write to that address, and
determine (how?) that nothing shady's going on there?

The answer seems pretty clear.

In the absence of outright governmental/dinosaur malice, no reasonable person
who understands technology would ever propose shifting the burden to content
creators/publishers in the default case. If there's a criminal investigation,
they're already required by law to be helpful.

~~~
digi_owl
> However, newspapers let people place personal ads: "Pottery enthusiast seeks
> friends. 555-1212, or write to 1010 Binary Lane."

I recall reading a story from a guy living in England during the Amiga years.

At one point he learned that he could place a personal ad in the back one of
the many magazines sold, offering to exchange copies if he was mailed
floppies.

At the height of this activity he got so much mail he had to buy extra drives,
and spend whole weekends swapping floppies.

And this is sending floppies via physical mail.

If you want a contemporary equivalent i hear there are people operating a
"sneakernet" based on external HDDs over in Cuba.

Heck, i have personally seen people bring duffel bags of CD-Rs to LAN parties.
And this was back when most used modems to get online.

------
gioele
The Court of Justice of the EU has some of the most competent IT lawyers of
the world. I am sure they already compiled a memo about the definition of
"hyperlink". I'd love to see it.

What constitutes an hyperlink?

* A working `<a href="url">` HTML element? So overlay links inside YouTube videos are OK? What about <span> elements with `onclick="window.location="`?

* Anything that can point to a URL and is actionable?

* A simple URL? Would an URL in the text be considered an hyperlink? That could easily be extended to consider URLs in footnotes in printed book hyperlinks as well. (And what about EPUBs?)

* A non-dereferenciable URL? What happens if I write as normal text the SHA1 of a file I want you to have a look at? Any DHT-enabled application/protocol would be able to fetch it.

Are we basically going back to DeCSS and forbidden numbers?

PS: Firefox US English spell checker does not know about the newfangled word
"hyperlinks".

~~~
avar
Courts have been dealing with clever nitpickers like yourself for centuries.
All of these would be hyperlinks according to the courts, and if you tried to
argue otherwise you'd be told that you were trying to make a "distinction
without a difference".

~~~
rambambam
He is just curious at the specific definition the court is going to come up
with. Were do they draw the line and how would they capture that in words?

------
germanier
Just to make things clear, nothing is decided yet. What is debated in this
thread is the very same question the court will answer. For example, they are
being asked to asses:

> is it important whether the ‘hyperlinker’ is or ought to be aware of the
> fact that the website to which the hyperlink refers is not easily findable
> by the general internet public?

Which in fact does included the finer details of changing content after the
link was published. But that isn't really important to this specific case: The
link pointed to the very same content all the time and was labelled with the
content on the linking website. Even if they decide that this link was illegal
that does not necessarily imply that any link going to infringing websites is
a law violation (for example, if the content changed later on or different
content is served to different users).

That's what courts are there for: They are asked question of legality and
answer them. We don't know yet how they will decide this time and it's wasted
time to mock judges for not knowing anything about technology before actually
seeing the ruling they make. The CJEU has a pretty good track-record so far.

------
IsaacL
I'm not a fan of the EU at all, and I'm not a fan of unnecessary government
regulation. However, this article is FUD.

American readers tend to assume the worst about government regulation of the
web, but a charitable reading suggests a pro-copyright ruling might not be
completely ridiculous. They'd have to draw a tight boundary to ensure they
only cover blatant cases (like the blog which linked to leaked photos), and
avoid leaving all users open to accusations of copyright infringement. If they

\- limited it to cases where it was clear the intent was to link to
copyrighted content the owner expressly didn't want to be linked to (assuming
that if the owner hasn't expressed this, content posted online is, by default,
OK to link to)

\- added exclusions for a) old links, b) user-submitted links, c) links to
content which changed

it wouldn't be an unreasonable law. I don't know if the final decision will be
that sensible, but I wouldn't rule it out. The cookie regulation wasn't
especially onerous and probably helped educate users about the legitimate role
of cookies.

I should also point out that this is a judicial decision, not something
created by the legislature. The court has to decide how to apply the existing
law to this case, and in doing so establishes new case law.

(I made this comment as I don't think the EU can be criticised on the grounds
of producing ill-thought-out regulations. As technocratic bureaucracies go,
the EU is efficient and works well. Instead, I'm opposed to technocracy on
principle, and I think 30-50 years out the EU will have evolved into
inefficient Brezhnevism).

------
rsync
Ugh. For the last time. A hyperlink is not a _special_ kind of descriptor.

You could very easily write a browser plug-in that would take addresses of the
form: "there is a website on the Internet that is named example.com and on the
server upon which example.com runs, there is a directory named /files, within
which there is a regular file named index.html".

See ? So it's just speech. It's not special speech, it's not interesting
speech, it's not strange computer speech. It's just plain old speech.

I have been trying, for 14 years[1][2] to erase this distinction with the
thought experiment of the "natural language hyperlink" and I had hoped that
this "issue" would just disappear.

Do I really have to write that plug-in ? Really ?

[1] [http://slashdot.org/story/02/02/06/1559237/slashback-
playsta...](http://slashdot.org/story/02/02/06/1559237/slashback-playstation-
cuecat-games)

[2]
[http://www.kozubik.com/published/decisions.txt](http://www.kozubik.com/published/decisions.txt)

~~~
germanier
That's exactly the point. I would be very surprised if the court would see a
difference between your description and an a-tag. But your description might
still aid copyright infringement and it's the question whether the speaker
should be liable for that or not.

If I'm standing on the market square and reading today's newspaper out loud
that is _just speech_. But it's also copyright infringement.

This case has nothing to do with the specific form of a link. The question is
whether one can infringe copyright by giving a very specific (and
automatically executable) description on how to do so.

------
chjohasbrouck
This proposal makes the EU cookie law
([https://www.cookielaw.org](https://www.cookielaw.org)) seem totally
reasonable by comparison.

My first question is, what impact would this have on the European economy over
time? Total devastation? Or would it ultimately amount to just a bunch of
fines and legal fees that only the major tech companies can afford to pay,
effectively locking out competitors?

In other words, would this merely be horrible for consumers, or would it also
set the entire European economy back half a century?

~~~
simcop2387
Absolutely horrible for consumers. Not sure what it would do to the European
economy, but at best it would have no effect on it. There'd be no good side to
this happening.

------
jaredhansen
In related news: Internet mulls increasing irrelevance of Europe's top court.

Seriously, what are they going to do? Outlaw "unchecked" hyperlinks?
Really?(!) Good luck with enforcement, guys!

~~~
adrianN
Somebody has to provide business for all those lawyers sending notices to
small site owners. Soon Getty will be able to sue not only for having an
Awkward Penguin meme on your site [1], but also for linking to any social
media site that might have images of Awkward Penguin on it.

[1] [https://www.getdigital.de/blog/getty-images-wants-license-
fe...](https://www.getdigital.de/blog/getty-images-wants-license-fees-for-the-
awkward-penguin-meme/?her=affilinet)

------
coldcode
No one can be dumb enough to destroy the very basis of the entire web. Perhaps
it will just be annoying like clicking on a link requires an alert telling the
user that the destination may not be acceptable, like the cookie alert but
more intrusive. I wonder how this applies to JSON or XML links?

~~~
deathy
What about if I send a link via some sort of messaging app possibly to a
friend in another country? (the Dutch/Australian issue mentioned)

That can be a standalone application and not a web page, so the initial
assumption of "every hyperlink in a Web page" fails.

~~~
freehunter
Or what if I link to a site that links to infringing content? I'm not allowed
to share a link to www.illegalstuff.com, but can I link to www.totally-
legal.co.uk, which has a link to illegalstuff.com? What if totally-legal.co.uk
has a 302 redirect to illegalstuff.com? It totally-legal.co.uk an illegal
link, even if that actual site doesn't contain illegal stuff?

------
trose
I can't wait for the day when our legislative bodies actually understand how
the technology around them works. Maybe then we can avoid idiotic discussions
like the ones surely going on in this courtroom right now.

~~~
Analemma_
It won't happen until "those people who actually understand how the technology
around them works" decide to become legislators. Are you quitting your
engineering job to run for office?

~~~
TeMPOraL
It's irrelevant. It would happen even if everyone involved had a CS PhD.

Note that there's a reason this idea is being discussed, and it's _not_ that
the Internet is broken and needs to be fixed. The Internet works fine. But
there are groups of people who want to make money off it, and they have enough
resources to (attempt to) buy legislation that would favor their preferred
business model.

------
TrevorJ
By the same logic, every addressing system that might lead you to pirated
material should also require the same checks. What if I print out a copy of a
poster I don't have permission to use and then give you the GPS coords where
you can go view it?

What if I put said poster on the outside of my house and then share my home
address?

What if a band is playing a set in a pub and wants to advertise beforehand? Do
the need to make sure the pub in question is not breaking any copyright laws
before they can include the location on their marketing material?

Ridiculous.

------
jkldotio
"The Court itself is composed of 27 judges, one from each member state. Only
ten of the current judges (that’s 37 per cent) have served in a domestic
appellate court or above within their member state." (2012) --
[http://blogs.lse.ac.uk/europpblog/2012/03/07/european-
court-...](http://blogs.lse.ac.uk/europpblog/2012/03/07/european-court-of-
justice-enforcer/)

------
walterbell
What do search engines like Google think of this proposal, e.g. would web
search be less useful because of lost PageRank signals, or would web search be
more in demand because there would be no other way to find web pages? For that
matter, how would search engines discover new web pages if people are
reluctant to link to new pages?

~~~
FenugreekAcerb
Search engines must provide links themselves.

~~~
walterbell
Search engines could license and distribute selected content, under a revenue-
sharing arrangement with the publisher. Those fighting against links could
lose all the advantages of decentralized distribution and could be forced into
centralized distribution channels under non-negotiable terms.

------
lisper
The fact that the court is even considering this is an indication of deep and
profound ignorance on their part. There is no binding at all between URLs and
content. A web server can serve different content for the same URL on every
single request. In fact, _most_ URLs on the web today are like that.

~~~
germanier
It's their job to consider this as they were asked to answer that question. In
the case we are talking about, the content was the same for every request and
the linker knew what they were linking to. They would be doing a pretty bad
job if they would not think about whether this fact changes anything for at
least some cases.

What you answered may as well be their answer. We have to wait and see.

~~~
lisper
> In the case we are talking about, the content was the same for every request

But (by my understanding) the court is not ruling narrowly on this particular
case, it is ruling broadly on linking to unlicensed content _in general_.

> and the linker knew what they were linking to.

How do you prove that? In particular, how do you prove that someone who links
to a page knew that the page contains unlicensed content at the time they
produced the link?

It might be possible to prove it in some very particular circumstances, but
how do you prove it _in general_?

~~~
germanier
Yes, they are going to answer the question in general including the points you
brought up. Just categorically denying any liability for links without
thoroughly thinking about those points is shortsighted.

Just because _in some cases_ it would be stupid to rule against the linker
doesn't mean that it wouldn't be the right thing _in other cases_. Saying
linking in general should never result in violation of the law because <insert
specific situation here where it would be crazy that does not always apply> is
disingenuous.

------
sjclemmy
Totally off topic, I know, but another white on black web page. It plays havoc
with my eyes. /rant

~~~
klodolph
The website is black on white by default, but configurable. You might be using
the dark theme.

Hover over the "Main Menu" button at the top, it should open a panel with the
option to go back to the default "Dark on Light" theme.

~~~
sjclemmy
I was reading on a mobile. It must default to the white on black theme.

------
whatnotests
Do we have to do this _again_? Seems every year we go through the exact. Same.
Thing.

------
thegayngler
Why is Europe wasting their time and everyone's money on this?

~~~
M2Ys4U
Because the national court asked the CJEU for a ruling on the EU's rules.
That's its job.

------
Zikes
A thinly-veiled attempt to outlaw posting links to TPB and the like.

