Europe’s Court of Justice rules that hyperlinking can infringe on copyright

EuropeanCommissionEuropa

On Thursday, the Dutch publisher of Playboy won a major legal victory concerning photographs that had been uploaded to the internet without its permission on a file sharing site. The ruling handed down by the European Union Court of Justice could have enormous consequences for users across the internet.

The case stemmed from a complaint against a Dutch website called GeenStijl, which had posted links to leaked photos from Playboy in October 2011. The website had received a tip that the pictures had been uploaded to FileFactory. It posted a cutout of one of the images and linked to the rest. Sanoma Media, Playboy’s Dutch publisher, requested that content be removed, which GeenStijl refused to do. Sanoma then sued the GeenStijl and its parent company, GS Media, arguing that the hyperlink and part of one of the images infringed on its copyright. The case found itself before the EU court, which ruled that posting hyperlinks amounted to copyright infringement, because the website profited from the traffic that it generated.

The court noted in its ruling that the website’s editors knew that the works had yet to be published in the print magazine and that its distribution through FileFactory was unauthorized. "Whoever post[ed] those links knew or ought to have been aware of those facts and the fact that that rightholder did not consent to the publication of the works in question on that latter website."

They key point in this case comes down to the phrase "Communication to the public of their works" in Article 3(1) of Directive 2001/29, On the harmonisation of certain aspects of copyright and related rights in the information society:

Member States shall provide authors with the exclusive right to authorise 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.

The court noted that the directive does not define "communication to the public", but that EU laws do work to protect the rights of copyright owners. It also surmised that those seeking to communicate to the public must make a judgment call as to the ethical nature of what they’re doing: balancing legitimate news against copyright infringement.

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