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The Electronic Frontier Foundation warns that a Court of Justice of the European Union ruling could threaten hyperlinking as we know it:
In a case which threatens to cause turmoil for thousands if not millions of websites, the Court of Justice of the European Union decided today that a website that merely links to material that infringes copyright, can itself be found guilty of copyright infringement, provided only that the operator knew or could reasonably have known that the material was infringing. Worse, they will be presumed to know of this if the links are provided for "the pursuit of financial gain".
The case, GS Media BV v. Sanoma, concerned a Dutch news website, GeenStijl, that linked to leaked pre-publication photos from Playboy magazine, as well as publishing a thumbnail of one of them. The photos were hosted not by GeenStijl itself but at first by an Australian image hosting website, then later by Imageshack, and subsequently still other web hosts, with GeenStijl updating the links as the copyright owner had the photos taken down from one image host after another.
The court's press release [PDF] spins this decision in such a positive light that much reporting on the case, including that by Reuters, gets it wrong, and assumes that only for-profit websites are affected by the decision. To be clear, that's not the case. Even a non-profit website or individual who links to infringing content can be liable for infringing copyright if they knew that the material was infringing, for example after receiving notice of this from the copyright holder. And anyway, the definition of "financial gain" is broad enough to encompass any website, like GeenStijl, that runs ads.
GS Media BV v Sanoma Media Netherlands BV and Others (C-160/15)
(Score: 4, Informative) by quietus on Saturday September 10 2016, @05:33PM
Indeed, EFF is being quite a bit on the hyperbolic side of things here. The whole decision revolves around how to determine what is exactly a "communication to the public" in EU law. The court stresses repeatedly that this assessment needs to be made case by case. In making such an "individualised assessment" (para 47 of the ruling [europa.eu]), local courts have to consider that:
Furthermore, it may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.
47 For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.
48 Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even in the absence of that intervention.
49 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.
If you knew, however, that the content linked to was illegally placed on the internet -- say, a free download of the last season of House of Cards -- you are indeed vulnerable to further prosecution (as you should be).
(Score: 1, Informative) by Anonymous Coward on Saturday September 10 2016, @06:00PM
> you are indeed vulnerable to further prosecution (as you should be).
talk about begging the question, jesus!
(Score: 3, Interesting) by captain normal on Saturday September 10 2016, @07:17PM
Agree...from EFF's own article: "The photos were hosted not by GeenStijl itself but at first by an Australian image hosting website, then later by Imageshack, and subsequently still other web hosts, with GeenStijl updating the links as the copyright owner had the photos taken down from one image host after another."
So Greenstill kept seeking and posting new links as the images were taken down. You think maybe they had a hint that there were copyright problems? As for "the pursuit of financial gain", check out GreenStill's site. To my way of thinking any site that wants me to turn off ad-blocking and script-blocking to look at their content deserves all the legal hassles they get.
Everyone is entitled to his own opinion, but not to his own facts"- --Daniel Patrick Moynihan--
(Score: 0) by Anonymous Coward on Saturday September 10 2016, @08:21PM
It's fine to not like ads. It's fun to use a ad/malware/tracking blocker. What's not fine is to send government thugs (court decisions are enforced by the state) after people for copyright nonsense just because some website makes money off of ads.
The EFF is more pro-freedom than a lot of people here, clearly. Don't let your hatred of ads trick you into supporting copyright thugs.
(Score: 0) by Anonymous Coward on Saturday September 10 2016, @11:47PM
> Don't let your hatred of ads trick you into supporting copyright thugs.
You would think that on site a so stead-fastly opposed to law-enforcement over-reaach like NSA spying in the name of the war on terror that we could also see the same effect at work in the war on pirates.
First they came for the pirates and I said nothing because I was not a pirate.
Then they came for the bittorrent trackers and I said nothing because I did not use bittorrent.
Then they came for the hyper-linkers and I said nothing because I had nothing to link to.
...
(Score: 0) by Anonymous Coward on Saturday September 10 2016, @11:34PM
> So Greenstill kept seeking and posting new links as the images were taken down.
> You think maybe they had a hint that there were copyright problems?
So what if they had a hint? I know where you can buy drugs and get hookers in town.
That's felony illegal, not just a civil violation, but telling people what I know is no crime.
People advertise prostitution on backpage.com all the time, and that is no crime.
How did the plaintiff know that this was happening anyway?
You think they might have been using the GreenStill's site to find the new image locations in order to DMCA them?
Seems like in the process of aiding copyright violations they were also aiding copyright enforcement.
(Score: 0) by Anonymous Coward on Sunday September 11 2016, @04:53PM
thank you! this is the point. me telling someone about someone else breaking the law is not me breaking the law. If you support this quelling of free speech you are anti freedom. period!