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An EU high court just handed a major win to content creators, holding that for-profit websites that hyperlink to unauthorized works are liable for copyright infringement.
This all started in 2011, when one of the Netherlands most popular websites, GeenStijl, posted multiple stories linking to nude photos of Dutch Playboy model Britt Dekker. The first post included part of a copyrighted photo and ended with the words “And now the link with the pics you’ve been waiting for,” according to the ruling. “By clicking on a hyperlink accompanying that text, users were directed to the Filefactory website, on which another hyperlink allowed them to download 11 electronic files each containing one of those photos.”
GS Media, which operates GeenStijl, refused to remove the link, but Filefactory agreed. That didn’t solve Playboy‘s problem though. Less than two weeks later, the site published a second story about the dispute and ended with another hyperlink to the photos through a different third-party site, Imageshack.us. Again, GeenStijl refused to remove the link, but Imageshack complied.
GeenStijl then thumbed its nose at the issue by posting a third story entitled “Bye Bye Wave Wave Playboy” — and again linked to sites containing the pirated images.
Playboy, however, had the last laugh.
EU law holds that “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.”
At issue is whether posting a hyperlink to infringing content qualifies as “communication to the public.” In a ruling issued Thursday, the Court of Justice of the European Union held that — in the case of a for-profit website like GeenStijl — it does.
“[W]here 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,'” states the ruling. “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.”
The court held that the same goes for sites that allow users to access content by circumventing restrictions, such as paywalls.
The court tempered its decision by holding that if the person posting the hyperlink was not doing so for profit, “it is accordingly necessary … to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.”
On Thursday, John McVay, chief executive of Pact, the U.K. trade association for independent film and television, issued a statement in response to the ruling. “Today’s verdict from the CJEU confirms that making a profit from the work of others by providing links to copyrighted material without permission from the owners is illegal,” McVay said. “Action against illegal sites is not about preventing access to movies, TV and content — rather it aims to stop pirates exploiting content that’s not theirs and ensures that users consume content in a safe environment, where they receive the best possible user experience.”
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