(Un)safe linking under copyright law

During attempts to find a balance between the fight for the interests of holders of copyright and the needs of the information society on the Internet the question of linking to pirated content has emerged. The ECJ tried to answer this. And it answered, but with this judgement it opened more issues than it was aiming to close.

In May, in the context of the case GS Media BV v Sanoma Media Netherlands BV Playboy International Inc., Britt Geertruidzie Dekker (C-160/16) (here) we discussed on the blog, whether linking may violate copyright. In a precedent-setting decision of 8 September 2016 the ECJ decided that linking to “pirated works” breaks the law, and GS Media BV made publicly available copyrighted images. It is worth noting that in its judgement the ECJ ruled differently than the prior opinion voiced by Melchior Wathelet, Advocate General of the ECJ.

The ECJ stated that Article 3 paragraph 1 of Directive 2001/29 must be interpreted as meaning that in order to determine whether the fact of placing on a website hyperlinks linking to protected works – freely available on another website, without the permission of the copyright holder – constitutes “making publicly available” within the meaning of that provision, it should be determined whether these hyperlinks have been made available without profit-making by a person who did not know or could not reasonably know about the illegal nature of the publication of these works on another website, or, on the contrary, these hyperlinks have been made available in order to profit, in which case the awareness is presumed.

Therefore, if someone places a link to “pirate files”, there is no violation of law, only if the person taking this action does not work for profit and is not aware of the unlawful nature of their conduct.

(Un)awareness and the culpability and punishment

The Court found for the assessment of this issue it must take into account many interdependent factors. First, the indispensable role of sharing the link and intended nature of its activities should be taken into account, especially the awareness of the consequences. Those providing the link may have difficulty in verifying the website to which the link leads provides access to works made available in accordance with the law, or illegally. The Court pointed out if a person does not do that for profit, the fact this person does not know and could not reasonably know that this work has been published on the Internet without permission of the copyright holder should be taken into account.

However, if the person providing the link was aware that these are “pirated works” (i.e. has been informed by the proprietor) or the provided link allows bypassing protection mechanisms used on the site, then we have a case of  infringement.

Subsequently, the profit nature of sharing is also important. The ECJ stressed the entity making profit can be expected to carry out a verification of whether the file has been published unlawfully. This allows assuming the publication of the link is done deliberately, so if the presumption is not rebutted, responsibility for “publicly sharing” a work follows.

At the same time the ECJ emphasized the special importance of the Internet for freedom of expression and information, including the important role of hyperlinks that contribute to the flow of information in the network.

Mixing fire with water

In its judgement, the Court clearly tried to maintain a balance between the interests of the holders of the copyright on the one hand, and the needs of the modern information society, functioning in the digital world, on the other, particularly in the view of protecting the freedom of expression and information. Did it succeed? Time will tell. It will turn out what will be the answers to many of the questions that this judgement causes and provokes.

Questions without answers?

Starting from what is profit-making itself. In the case of paid access to the content the case is obvious. In the case of profit from advertising, it is probably obvious, too, although here we can imagine other scenarios. But what about portals of promotional nature, yet not profit-making directly?

Another issue, associated with numerous unknowns, it the issue of the criteria of rational knowledge of the unlawful nature of the content. If a free version of a film appears on the Internet, which is about to première in cinemas, one can guess that the file on the Internet is illegal. But what if it is on a server of a reputable and widely used content provider? Some musicians (e.g. Coldplay’s “LeftRightLeftRightLeft” album) publish online entire albums for free, completely abandoning the commercial distribution channels. Finally, should the entrepreneurs now make additional (and if so, what) verification of the legality of file when they want to link material from YouTube, Spotify, or similar sources?

And in the end it raises the question of whether the reasoning of the tribunal should be limited only to the so-called deep links, or if there will be a temptation to apply them to the entire page, on which the illegal file is located.

What’s next?

There are many questions. The decision of the ECJ in principle seem right. The factual state, which was its canvas (described by us earlier on the blog) showed clearly the absolute lack of responsibility for linking – in a situation where someone, fully aware what he or she was doing, being a commercial entity, practically “thumbed one’s nose” at those authorized, made available links to protected and not legally available content – raises important and reasonable doubt. However, this ruling opens more threads than settles with its decision. We also have doubts about whether the line between what is legal and what is illegal was placed in the right place.