European Union’s Top Court Rules That for Profit Linking to Knowingly Infringing Material Violates Author’s Rights

Stephen Carlisle September 15, 2016

September 8, 2016 saw a much needed injection of common sense and fair play into both the internet and copyright protections for authors. The Court of Justice of the European Union ruled that a website that knowingly, and for profit, linked to illegal copies of photographs belonging to Playboy magazine, infringed Playboy’s rights under Article 3 of Directive 2001/29, which states:

“Member States shall provide authors with the exclusive right to authorise (sic) 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.” ¹

Please note, faithful reader, that the English translation of the Court’s decision is not always the picture of clarity, but bear with me.

Here’s how the whole mess went down.

• In October of 2011, Playboy contracted with a photographer to take nude photographs of Dutch Model Britt Decker. ²
• “On 26 October 2011, the editors of the GeenStijl website received a message from a person using a pseudonym, which included a hyperlink to an electronic file hosted on the website Filefactory.com,… [a “file locker” site] located in Australia, that electronic file contained the [as yet unpublished] photos at issue.” ³
• The very same day, Playboy requested that the parent company prevent the photos from being published. ⁴
• The website refused, instead publishing a story the very next day with links to the photographs bragging “and now the links with the pics you’ve been waiting for.” Clicking on the link took the user to the FileFactory account where they could download 11 files containing the unpublished photos. ⁵
• Playboy demanded the links be taken down. The website thumbed their noses at them.
• Playboy sent a notice to FileFactory, who took the files down.
• The images got reposted to Imageshack.us on November 7, 2011. The website linked to them again, crowing “Update: Not yet seen the nude pics of [Ms. Dekker]? They are HERE.” ⁶
• Playboy sent a notice to Imageshack.us, who took the photos down.
• The photos got reposted again. The website again linked to them, taunting Playboy with the headline: “Bye Bye Wave Wave Playboy.” ⁷
• Playboy finally published the pictures in December 2011, and filed suit against the website and its parent company. ⁸

The Court first found that the mere posting of a hyperlink was not, in and of itself, illegal, stating “posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’ as covered by that provision.” ⁹

However, whether the work was posted legally was another question. The website was certainly on notice that they were on the file locker sites illegally.

“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.” ¹⁰

Plus, the photos had yet to be published. They had yet to appear anywhere “with the consent of the copyright holders.” The Court ruled:

“[P]osting, on a website, hyperlinks to protected works which have been made freely  available on another website, but without the consent of the copyright  holders of those works, would be excluded, as a matter of principle, from the concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Rather, those decisions confirm the importance of such consent under that provision, as the latter specifically provides that every act of communication of a work to the public is to be authorized [sic] by the copyright holder.” ¹¹

Further, an authorized posting would extend not only to unpublished material, but that material which is placed behind a paywall.

“The same applies in the event that that [sic] link allows users of the website on which it is posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers, the posting of such a link then constituting a   deliberate intervention without which those users could not benefit from the works broadcast.” ¹²

Lastly, the fact that the website operated “for profit” was the final nail in the coffin. The Court ruled that the fact that a website operates for profit creates a presumption that the website has checked out whether the posting is legal or not.

“Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned   is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” ¹³

So, let’s recap the Court’s decision:

• You can’t post infringing links where you have actual knowledge that the material is infringing.
• You can’t post infringing links where you have good reason to suspect that the material is infringing, like where it is not yet commercially available.
• You can’t link to copies where the copyright owner has taken steps to prevent their further dissemination, such as placing them behind a paywall.
• If you are operating for profit, you have a duty to investigate the legality of the linked material.

The reaction was, of course, over-heated, the “death of the internet as we know it” and self-serving baloney. As reported by Yahoo, the website released a statement on its website claiming:

“If commercial media companies – such as GeenStijl — can no longer freely and fearlessly hyperlink it will be difficult to report on newsworthy new questions, leaked information and internal struggles and unsecure networks in large companies.” ¹⁴

Let’s take these one at a time:

• “Freely and fearlessly.” Nope. How about “carelessly” or “negligently?” Nope, even that doesn’t quite do it. How about “knowingly and not giving two hoots about the damage being done?” Yep. That’s more like it.
• “Newsworthy new questions.” There was nothing newsworthy about the photos. They had yet to be published. The fact that the photos had been leaked might be newsworthy, but this could have been reported without linking to the complete collection of actual photos.
•  “[L]eaked information…and unsecure networks in large companies.” Again, these facts can reported without linking to the material.
•  “Internal struggles.” The only struggle was to keep unpublished material off the internet.

Note that when the file lockers were sent notices, they took the material down. The GeenStijl website posted and then reposted the links two more times after they were clearly on notice that the material was infringing. What got them in hot water was their arrogance, which is all too common amongst internet users who say “I’m going to do it because I can and who cares if someone else gets hurt in the process.” See e.g. file-sharing, content scraping, bit-torrent of illegal copies, passing around hacked nude photos of celebrities, revenge porn, child pornography…the list is endless.

Not to be outdone, the Electronic Frontier Foundation howled:

“There are also many times when knowingly linking to something that is infringing is entirely legitimate. For example, a post calling out a plagiarized news article might link to the original article and to the plagiarized one, so that readers can compare and judge for themselves. According to this judgment, the author of that post could themselves be liable for copyright infringement for linking to the plagiarized article—madness.” ¹⁵

Of course this is wrong and overstated.

The EFF conflates the concepts of plagiarism and copyright infringement. They are not always the same thing. One may copy ideas, theories, arguments and hypothesis from another work without credit without this turning into copyright infringement, because copyright does not protect these things. ¹⁶ But copying these things from someone else’s article without proper attribution certainly would be plagiarism. ¹⁷

Lastly, the EFF sets up a straw man and knocks it down. The hypothetical news story could certainly report on the plagiarism, without reproducing any of the material, or on certain small portions that would be regarded as fair use. There is no over-riding need or necessity to reproduce or link to the entire article.

In short, the situation here is really no different than that posed by Harper and Row v. The Nation, ¹⁸ where unpublished material is made public, to the economic detriment of the copyright owner, a situation the Supreme Court of the United States quite emphatically ruled was not fair use.

The result should be no different here.

Perhaps the EFF is worried that their website “Lumens” (formerly “Chilling Effects”), which as I have pointed out before is the world’s largest pirate site, with literally millions of working links to pirate material, ¹⁹ might run afoul of this Court’s ruling.

The EFF and Harvard University sued for massive copyright infringement?

I’d pull up a chair and watch that one.