Dutch Court: hyperlinks on website can constitute copyright infringement
Yesterday, the Court of Amsterdam decided that publishing hyperlinks to copyrighted content is, under certain circumstances, a copyright infringement. It’s a pioneering decision, as it is the first time that a Dutch court rules in proceedings on the merits that hyperlinks can constitute a breach of copyright and formulates clear criteria in order to test if the circumstances of a case lead to an actual infringement.
In October 2011, website GeenStijl.nl published an article about leaked nude pictures of Dutch television presenter Britt Dekker. The pictures were shot for Playboy and were planned for the December edition of the magazine. The article on GeenStijl.nl contained a hyperlink to a zip file with the pictures, hosted by Australian file sharing website FileFactory.com. Sanoma, publisher of Playboy, ordered FileFactory.com to remove the zip file. Thereafter, GeenStijl.nl updated its article with a hyperlink to Imageshack, where the photo shoot could be viewed directly. Sanoma also ordered Imageshack to remove the pictures. Meanwhile, the pictures were spread across the internet and new links to the photo shoot kept popping up. Notwithstanding several letters in which Sanoma requested GeenStijl.nl to remove the article and the links, GeenStijl.nl published two more articles with hyperlinks to the pictures. Sanoma sued GeenStijl.nl for copyright infringement and for violation of Britt Dekkers portrait rights and privacy.
The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.
- Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
- New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
- Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.
Taking the three criteria and the circumstances of this specific case into account, the court concludes that GeenStijl.nl has infringed on Sanomas copyrights by publishing the URL to the leaked nude pictures of Britt Dekker.
Dutch anti-piracy foundation BREIN welcomes the decision of the court. Tim Kuik, director of BREIN, sees a parallel with illegal websites that publish links to copyrighted content. According to Kuik, they also meet the three criteria formulated by the court, meaning that they also violate copyrights by publishing hyperlinks.
In May 2010, there was a somewhat comparable Dutch case. In an ex parte decision, the Court of The Hague stated that spots on FTD, containing links to files of the movie ‘Komt een vrouw bij de dokter’, constituted a disclosure and therefore a breach of copyrights. FTD is an application that helps users to search for and browse through content on Usenet.
Read the decision of the court here.
Source: Webwereld
Comments(8)
Dodgy Geezer
Surely there's a difference between a 'direct' intervention - actually providing a violating object - and an 'indirect' intervention, such as saying that a violation object can be found somewhere.
Otherwise, if such a lose connection is allowed to be made, we are all guilty of murder. Because it would be easy to make a chain of connections linking us, however remotely, with every other activity on the planet.
The only way around this that I can see is to make a specific law about hyperlinks. But given the mess that the 'cookie' legislation caused, I don't believe that the legislators have got enough technical ability to draft such a law....
Malcolm McCaffery
I'd say this case is pretty clear violation of copyright in all sensible sense. The title is misleading. They've gone out of their way to link to copyrighted material. IF this law was also applied to cases where say you linked to an external article (i.e. wikipedia) which violated copyright, that would be bad. i think that should be handled differently.
John
When people are making laws about metaphors rather than reality, it will be slow slide downhill from there. It becomes very arbitrary.
How can something on the web be 'a publication' or 'not a publication'? It is all a publication.
How can something on the web be 'a copy' or 'not a copy'? It is all a copy. Nothing can appear on your screen without making copies. Your computer can't even function without making copies - it is how they work.
Streaming and downloading are the same thing, exactly same info is transmitted, yet can be end up being one law or another law depending on whether a judge decides to pick a different metaphor on the day. So you can be a criminal or not a criminal for doing effectively the exact same thing.
If we make law this way without regard to what is actually happening, then we are lost. There will be no justice in that, just arbitrary punishment.
Daniel
The question here would reasonably be WHY someone hyperlinks. If I'm indexing pages in general I'm likely to have no particular intention to (without permission) promote (someone elses) copyrighted material. If I'm deliberately linking to such stuff, with the intention to facilitate someone elses violations, then that's another story.
Yes, everyone could be - remotely - linked to murder, but most people harbors no intention to partake, directly or indirectly, in such activities. Deliberately and knowingly faciliating murder, while not performing the actual act yourself, could (and, I think, should) still put you in legal trouble.
John
50 years from now, we will look back on this era as the era when policy makers and lawyers attempted to reverse time and just exasperated any attempts to be rational and start again with better foundation principles.
Its mind boggling seeing the mental gymnastic and contortions policy makers and lawyers are making at the moment. All just extending and complicating the madness copyright has been already.
Here is a good example. Technologies that shouldn't exist but do due to copyright madness.
http://arstechnica.com/tech-policy/2012/08/why-johnny-cant-stream-how-video-copyright-went-insane/
gg
"I'd say this case is pretty clear violation of copyright in all sensible sense. The title is misleading. They've gone out of their way to link to copyrighted material."
I don't know about your country's legislation, but where I live, violating a copyright necessitates an actual creation of a copy. (That's why it's called "copyright", da?) So no, this is not a "pretty clear violation of copyright in all sensible sense".
Cornou
I think someone should explain to the judge that a "hyperlink" is nothing more than a piece of text identifying an adress.
So basically, what geenstijl did is point to an address where they knew an allegedly illegal copy of copyrightable material to exist.
I don think you can be charged with theft if you publicly display the address of a warehouse where stolen goods can be found. You may even be helping the police by that.
In stead of criminalising publication of an address (which is what hyperlinking is), the police should be grateful for the help these people provide and use it to find people who provide illegal copies.
In that sense, they should laud the people of The Pirate Bay and use their help, by logging on to each and every torrent there is.
Future of Copyright
Thank you all for your replies, I really enjoyed reading them.
This is a great case to debate on, since it concerns a judge's interpretation of ' a new publication' of content. Keep sharing your thoughts, we are always interested in input from our readers!
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