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In a big new precedent-setting ruling, the European Union’s Court of Justice on Thursday determined that linking to freely available copyrighted work on another site doesn’t constitute a communication to the public. According to the judges’ legal reasoning, the website that first posted the content has made it available, and so the second website using a hyperlink “does not lead to the works in question being communicated to a new public.”
As such, according to the ruling, “since there is no new public, the authorisation of the copyright holders is not required.”
There are some wrinkles, of course.
Most important, if those doing the linking circumvent access restrictions, they can still get in trouble. Similarly, if the first website has taken down the material and the linking site figures out a way to provide it to their readers anyway, the linkers could still face the legal venom of copyright holders.
Nevertheless, the decision might be a blow to big copyright holders such as entertainment studios, broadcasters and professional sports leagues who have been fighting tooth and nail against link hubs. U.S. authorities have even tried to extradite one European who linked to free films and TV shows on his website.
The Motion Picture Association appears to be taking a more friendly interpretation of today’s ruling. In a blog post on why the decision will advance legal video streaming platforms, MPA president Chris Marcich writes that the ruling refers to “any link that would create other than the originally intended public constitutes an unauthorized act of communication to the public and thereby infringes copyright.” (emphasis ours)
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