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Europe's Court of Justice rules that hyperlinking can infringe on copyright

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The ruling could have widespread consequences

European Commission

On Thursday, the Dutch publisher of Playboy won a major legal victory concerning photographs that had been uploaded to the internet without its permission on a file-sharing site. The ruling handed down by the European Union Court of Justice could have enormous consequences for users across the internet.

Sanoma argued that the links infringed on its copyright

The case stemmed from a complaint against a Dutch website called GeenStijl, which had posted links to leaked photos from Playboy in October 2011. The website had received a tip that the pictures had been uploaded to FileFactory. It posted a cutout of one of the images and linked to the rest. Sanoma Media, Playboy’s Dutch publisher, requested that content be removed, which GeenStijl refused to do. Sanoma then sued the GeenStijl and its parent company, GS Media, arguing that the hyperlink and part of one of the images infringed on its copyright. The case found itself before the EU court, which ruled that posting hyperlinks amounted to copyright infringement, because the website profited from the traffic that it generated.

The court noted in its ruling that the website’s editors knew that the works had yet to be published in the print magazine and that its distribution through FileFactory was unauthorized. "Whoever post[ed] those links knew or ought to have been aware of those facts and the fact that that rightholder did not consent to the publication of the works in question on that latter website."

They key point in this case comes down to the phrase "Communication to the public of their works" in Article 3(1) of Directive 2001/29, On the harmonisation of certain aspects of copyright and related rights in the information society:

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

The court noted that the directive does not define "communication to the public," but that EU laws do work to protect the rights of copyright owners. It also surmised that those seeking to communicate to the public must make a judgment call as to the ethical nature of what they’re doing: balancing legitimate news against copyright infringement.

To test this, the court questioned whether posting a hyperlink to protected works freely available on the web constituted "communication to the public," and whether it could be prohibited. It cited a 2014 ruling, Svensson and Others, which found that merely linking couldn’t be considered as such. However, the court found that the consent of the copyright holders was specifically protected, and that because this content had been uploaded without consent, this could be ruled as "communications to the public."

The court acknowledged the issues that this poses for journalists and publications, and held that the freedom of expression and information is "safeguarded by Article 11 of the Charter." It also held that it’s difficult for individuals to determine the legitimacy of content on the internet, but that they should be able to assess whether or not the content was uploaded by someone who a) isn’t seeking a profit, and b) that said uploader isn’t aware or can’t reasonably know that what they’re publishing is without consent. However, if someone posts a link knowing that the content is illegally placed on the web, and if they stand to profit from the traffic, they’re in violation of the law.

GeenStijl argued that the ruling reduces the ability of the site to report on newsworthy information

GeenStijl argued that the ruling reduces the ability of the site to report on newsworthy information, an argument that echoes that of Gawker Media’s arguments in its own case against Terry Bollea earlier this year. According to Reuters, the European Commission is slated to introduce new rules for publishing copyrighted content next week.

The Electronic Frontier Foundation slammed the ruling, stating that it makes hyperlinking tantamount to copyright infringement, and that the case "threatens to cause turmoil for thousands if not millions of websites" by giving copyright holders new ammunition to bring lawsuits against publications. The ruling could also have the chilling effect of discouraging websites from posting hyperlinks to sources, out of the fear that they could be linking illegally posted content. It’s not clear at this stage what affects the ruling will have on websites and what extent they will be required to evaluate the content they link to.