Links to Playboy Pictures Don’t Infringe Copyright, Says Top EU Lawyer

The first issue of Playboy magazine with Marilyn Monroe on the cover and signed by Hugh Hefner on page three is displayed at Julien's Auction House in Beverly Hills, California on June 22, 2015 ahead of Julien's "Hollywood Legends Auction" on June 26th and June 27th. Hefner launched Playboy in December 1953, selling for 50 cents a copy, with this issue estimated at $3,000 - $5,000. AFP PHOTO/FREDERIC J. BROWN (Photo credit should read FREDERIC J. BROWN/AFP/Getty Images)
Photograph by Frederic J. Brown — AFP via Getty Images

The web is built up of links to all sorts of things, but in Europe some argue that links to copyright-infringing material are themselves in breach of copyright. If they get their way, people linking to stuff will need to first check that it’s legit.

Luckily for those without the time or ability to do so, there’s a good chance that the EU’s highest court is going to declare that links cannot in themselves infringe copyright. The European Court of Justice’s (ECJ) top legal adviser has recommended making that ruling, and the court usually follows what he or she says.

What’s more, advocate-general Melchior Wathelet told the court that it is irrelevant whether or not the site posting links to copyright-infringing material did so deliberately.

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That could have huge implications for sites that don’t host pirated music and videos themselves, but direct people to sites that do. It could also have an impact on the future business of search engines such as Google(GOOG).

Wathelet’s opinion came down Thursday in a case involving the former publisher of the Dutch edition of Playboy, Sanoma Media, and a prankster-ish website called GeenStijl (“No Style”).

Playboy published pictures of a Dutch TV presenter called Britt Dekker, which were then unlawfully posted on an Australian website. GeenStijl posted a link to the pictures on the Australian site. GeenStijl refused Sanoma’s demands to remove the link, but then the Australian site responded to a takedown notice by removing the pictures.

So GeenStijl taunted Sanoma by posting a link to another website hosting the pictures — which then also took them down. GeenStijl’s readers then started sharing links to the pictures on other websites, via the site’s forums.

For more on copyright watch:

The Dutch supreme court then asked the ECJ to weigh in on the case, because it wasn’t sure how hyperlinks are treated in the EU’s 2001 copyright directive. The Luxembourg-based court’s judgements are binding across the European Union.

According to Wathelet, links make it easier to access things, but they don’t necessarily make it possible to access them — and “making available” is an essential characteristic of copyright infringement under the directive.

If the material is already “freely accessible,” he said, linking to it doesn’t create any new “communication to the public.”

Here’s the meat of Wathelet’s opinion:

For the advocate general, any other interpretation of the notion of ‘communication to the public’ would considerably impede the functioning of the internet and would infringe one of the principal objectives of the directive, namely the development of the information society in Europe.

Although the circumstances at issue are particularly flagrant, the advocate general considers that, as a general rule, internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the internet was done with or without the consent of the holder of the copyright. If internet users risk liability for copyright infringement every time they place a hyperlink to works which are freely accessible on another internet site, they would be much more hesitant to post those links, to the detriment of the proper functioning and very architecture of the internet as well as the development of the information society.

If the ECJ follows Wathelet’s advice, that would be a ruling based on a 15-year-old law. As it happens, the European Commission is currently running consultations ahead of a revised copyright law, which it intends to propose in September or October (thus beginning a long period of negotiations with the other major EU institutions).

The commissioner in charge of this, Günther Oettinger, is famously open to the idea of forcing news aggregators such as Google News to pay fees when they use snippets of article text to link through to those articles.

It is unlikely, though, that the Commission’s new proposals would try to place a wider liability on links, as Wathelet argues the current legislation does not. After all, his opinion spelled out precisely why that would be a terrible idea.

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