Tuesday, September 13, 2016

Hyperlinking Decision is a Bit of a Rattlesnake, No Matter What


The European Court of Justice (ECJ) made a ruling last Thursday regarding hyperlinking and intellectual property. And depending on who you talk to, this is either sound or the end of the internet as we know it.

The court ruled that hyperlinks to content without permission from the copyright owner may be a violation of EU copyright law if it links to content that is itself violating copyright. As people muddle through the opinion, the question hanging over all of it is: how will this affect the internet at large?

The ECJ ruled in favor of Sanoma, the then-Dutch publisher of Playboy, who had sought to get the news site GeenStijl (“no style”) to remove a web link to photos of TV celebrity Britt Dekker which were unauthorized. The photos were first hosted by an Australian image hosting website, then Imageshack, and so on, as the copyright owner had the photos taken down from each site in turn. Each time GeenStijl updated its links, even after Sanoma told them to stop.


Though the ECJ has some guidance on the hyperlink issues in the past, the court had never gotten into the lawfulness of hyperlinking in the context of when consent for material to be shared online was missing in the first place. In their ruling the ECJ judges noted that there needed to be a balance between copyright holders and publishers, but that “the posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally.”

“In the present case it is undisputed that GS Media [GeenStijl’s publisher] provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorized the publication of those photos on the Internet,” the ECJ’s statement read. “It appears from the facts…that GS Media was aware of the illegal nature of that publication and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication. Subject to the checks to be made by the Hoge Raad, by posting those links, GS Media therefore effected a ‘communication to the public.’”

This case was also noteworthy for going against the advice of the Advocate General, who in April held that hyperlinking does not generally form a “communication to the public,” regardless of whether the content was uploaded with or without the right holder’s permission. While the ECJ agreed with the former, emphasizing the importance of the internet and hyperlinks as the method of freedom of expression and information, but finds that if the link is published knowingly without the right holder’s consent then it was a violation of EU copyright law.

This seems, as the Advocate General’s opinion argued, to suggest that the everyday functioning of the whole internet would be at risk. After all, to be infringing would only require that the website operator “knew or ought to have known” that they were linking to infringing content, and that “financial gain” as a barometer is broad enough to encompass any website that runs ads.

“This judgment is a gift to copyright holders, who now have a vastly expanded array of targets against which to bring copyright infringement lawsuits,” said EFF senior global policy analyst Jeremy Malcolm to Forbes. “The result will be that websites operating in Europe will be much more reticent to allow external hyperlinks, and may even remove historical material that contains such links, in fear of punishing liability.”

And  Eva Vonau, Camille Pecnard, and Nils Rauer of LimeGreen IP News agree that—though the reasoning is well-founded—it’s going to be difficult in application:

All in all, the new landmark decision resounds. It is consistent and therefore, after all, not surprising. However, what needs some reflection is the fact that the CJEU, in effect, creates two categories of hyperlinks, i.e. those that constitute a “communication to the public” and those that do not. Grounding this distinction on the subjective criterion of what the person setting the link knew or should have known is demanding in practice. In other words, courts will have difficulties in applying this guidance from the CJEU, particularly those which were already reluctant to apply the findings of its previous decisions. Also, rightholders will struggle to prove that the person who set the hyperlink knew or ought to have known. In a commercial environment, the shift in the burden of proof will help the right holder. Still, it is yet to be proven that the principles now developed by the CJEU will led to balanced decisions.

As the latest move from Europe to restrict the internet in some way—the right to be forgotten (which also went against the advice of the Advocate General) and copyright law updates currently under consideration that would make it an offense to publish photographs of iconic buildings and artworks—many people are clamoring to see how the Court’s latest opinion will work in practice.

Particularly when it comes to Google, who obviously publishes links to millions of websites. Up until now it has relied on taking down links when asked to by rights holders, but the latest ruling  implies that—as a commercial operator—Google is responsible for checking the copyright status of every site it links to in advance.


No comments:

Post a Comment