By Jeremy Malcolm of the Electronic Frontier Foundation
In a case which threatens to cause turmoil for thousands if not millions of websites, the Court of Justice of the European Union decided today that a website that merely links to material that infringes copyright, can itself be found guilty of copyright infringement, provided only that the operator knew or could reasonably have known that the material was infringing. Worse, they will be presumed to know of this if the links are provided for “the pursuit of financial gain”.
The case, GS Media BV v. Sanoma, concerned a Dutch news website, GeenStijl, that linked to leaked pre-publication photos from Playboy magazine, as well as publishing a thumbnail of one of them. The photos were hosted not by GeenStijl itself but at first by an Australian image hosting website, then later by Imageshack, and subsequently still other web hosts, with GeenStijl updating the links as the copyright owner had the photos taken down from one image host after another.
The court’s press release [PDF] spins this decision in such a positive light that much reporting on the case, including that by Reuters, gets it wrong, and assumes that only for-profit websites are affected by the decision. To be clear, that’s not the case. Even a non-profit website or individual who links to infringing content can be liable for infringing copyright if they knew that the material was infringing, for example after receiving notice of this from the copyright holder. And anyway, the definition of “financial gain” is broad enough to encompass any website, like GeenStijl, that runs ads.
This terrible ruling is hard to fathom given that the court accepted “that hyperlinks contribute to [the Internet’s] sound operation as well as to the exchange of opinions and information in that network”, and that “it may be difficult, in particular for individuals who wish to post such links, to ascertain whether [a] website to which those links are expected to lead, provides access to works [that] the copyright holders … have consented to … posting on the internet”. Nevertheless, that’s exactly what the judgment effectively requires website operators to do, if they are to avoid the risk of being found to have knowingly linked to infringing content.
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.
This judgment is a gift to copyright holders, who now have a vastly expanded array of targets against which to bring copyright infringement lawsuits. The result will be that websites operating in Europe will be much more reticent to allow external hyperlinks, and may even remove historical material that contains such links, in fear of punishing liability.