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European court says publishers can be liable when linking to copyright infringing files

By | Published on Friday 9 September 2016

European Commission

The European Court Of Justice has ruled that unknowingly linking to copyright infringing material should not in itself constitute copyright infringement, but that knowingly doing so should. And the obligation to know will be higher for those who are publishing for profit.

This conclusion comes from the previously reported Dutch case involving the website GeenStijl.nl and some leaked Playboy photos. In 2011, GeenStijl published a post linking to the leaked photos that were, at that time, stored on file-hosting service FileFactory. When the media firm that owned the Playboy snaps, Sanoma, got the leaked photos removed from the FileFactory server, GeenStijl then linked to alternative sources online where the unlicensed photos were still stored.

So Sanoma sued GeenStijl, arguing that, by publishing the links, the website was ‘making available’ the Playboy photos without permission, and was therefore liable for copyright infringement. At first instance Sanoma won, but the matter was appealed and eventually showed up at the Supreme Court of the Netherlands, which decided to consult the ECJ, because it was rights stemming from the European copyright directive that were at the heart of this dispute.

Earlier this year, the ECJ’s Advocate General Melchior Wathelet provided his opinion on the case, concluding that the mere act of linking to unlicensed content didn’t constitute a ‘communication’ or ‘making available’ of said content, and therefore the linker couldn’t be liable for infringement.

However, in its ruling the ECJ decided the matter was more complex. It basically said that, while Wathelet’s opinion was an acceptable default position, if the person linking to the infringing content knew about the infringement, then at that point it does constitute a communication to the public, and liability for infringement kicks in.

Says the court: “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 published, for example owing to the fact that he was notified thereof by the copyright holders, the provision of that link constitutes a ‘communication to the public'”.

As for the “ought to have known” bit, that mainly applies to professional publishers. “When hyperlinks are posted for profit”, the court continues, “it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet”.

All of which means GeenStijl.nl and its publisher GS Media is liable for copyright infringement in this specific case. Perhaps unsurprisingly, it said the ruling set a dangerous precedent.



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