In a fresh and mostly welcomed decision, the European Court of Justice – the highest court in the European Union – has ruled that hyperlinking is legal, even when linking to works that have been published illegally. This is a welcome victory for free speech and the net as such. However, the ECJ goes the other way with commercial speech and for-profit linking, declaring the opposite to be true under such conditions.
The ruling in the case between a Dutch site and Playboy concerned whether linking was a violation of the copyright monopoly when linking to works that were not authorized by the rights holder. The court ruled against the Dutch site, but in doing so, added significant amounts of safe harbor for hyperlinking in general:
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 contrast, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.
However, as we can see in the court verdict quote above, all is not well. The ideal outcome would have been for linking to be legal in all cases as a blanket statement. But as lawyers love the concept of “it depends”, the court introduces two conditions for safe harbor when linking to infringing publications: that the linking was done as part of a non-profit activity and the linking was made without knowledge of the infringement. In contrast, the court says, when linking to unauthorized publications as part of a for-profit activity, there is no without-knowledge defense, and therefore no safe harbor for linking.
This particular condition actually means that the court ruled against the linking media outlet in this particular case – it was a case where the Dutch site GeenStijl (meaning “no style”, “bad sense of fashion”) had linked to Playboy images. Those images, when published by Playboy, were clearly a publication permitted by the rights holder (Playboy itself), and so linking to them, displaying them, and embedding them is always legal under Retriever v Svensson et al. However, Playboy unpublished those images, and Geenstijl kept re-linking to other, unauthorized sources – and this is where it became a court case.
This means we can expect the copyright industry to shift their efforts from arguing “linking is a chained secondary liability” to “the website was operated with a for-profit motive”, as the ECJ has declared (all) links on a for-profit website to constitute copyright liability. Shall we expect corporations to set up nonprofit foundations in response for the purpose of handling all their web presence?
It’s particularly interesting that the ECJ chooses to rule that nonprofit linking without knowledge of infringement is not “Communication to the Public”. This term is key, because it is the activity protected under the distribution monopoly called copyright. Thus, this was not “defensible infringement” or “fair use” or something similar, where there was an activity taking place which was legally exclusive to the rights holder, but which was defensible even if infringing. Instead, this particular activity – nonprofit linking – was specifically said to not even be the type of activity that can be restricted under the monopoly.
(Watch out for legal changes to this particular definition, “Communication to the public”.)
As another interesting side effect, this also means that linking to expired works is now legal in the nonprofit case, and therefore, were this my personal blog, I could legally link you to the Australian project-Gutenberg version of “1984”, as the copyright monopoly has expired on that book in Australia and isn’t infringing where it’s published. However, in the EU and US, it has not, and this is a commercially-run blog, and therefore, I cannot legally make such a link on this particular blog. This illustrates that the ECJ ruling is not without a set of problems. Additionally, what happens when a nonprofit blog publishes such links, and that nonprofit blog later goes commercial, without deleting all hyperlinks from its nonprofit history?
This also has interesting effects for BitTorrent magnet links, as it’s reasonable to assume that they have not been provided with the consent of the rights holder in most cases. As such, magnet links would be illegal speech in the European Union as of yesterday evening. Expect the copyright industry to try something in this new attack surface in the coming years.