Originally published at: http://boingboing.net/2016/09/09/european-court-rules-that-maki.html
…
3 Likes
Merde.
FFS, EU Court of “Justice”.
5 Likes
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,
Is this a standard of actual knowledge, or constructive knowledge? The former is hard to prove: the plaintiff pretty much has to have a paper trail showing that the site owner was told the material was infringing, and linked to it anyway, deliberately. The latter is that the site owner “knew or should have known” that the material was infringing, and the latter standard is indeed a disaster, effectively forbidding Europeans from linking to any site they don’t own - since the link target could change at any time.
4 Likes
Yeah, I agree this isn’t great… But, it get’s blown way out proportion. Yes, there are valid reasons for linking to copyrighted material (as this article rightly claims and the EU courts also claimed in a 2014 case against a Swedish newsaggregator), but that is just not the case here. GeenStijl (which is essentially Buzzfeed with more nudity and a lot of Islamophobia) linked directly to a page with high resolution images of a Playboy shoot in an article that really only had those links (and not just one or two pictures, the entire shoot). In no way can that be considered fair use.
Yes, it sets a precedent, but GeenStijl is in no way an innocent little newssite. They tend to bet that the courts don’t want to set a precedent. They recently did this in a privacy-invasion case, for instance. They’ve also gotten away with several situation where racist articles where placed under “freedom of speech” rather than “hatemongering”.
This just means that any future court case will be confusing and weird with conflicting precedents floating around. These future court cases will need to clarify things.
Bad cases make bad law. 
4 Likes
Saying “he was no angel” is not very good law. You’re right, this sets a precedent - no buts. I am glad you are not a judge, or people sued in the future would need to prove they were “an innocent little newssite.” Tough standard of evidence for a defendant.
What surprises me is that Google didn’t weigh in with an amicus, or however you say amicus in European. They have lawyers to burn, and their main business is providing links. If I was Mr Google I would be throwing a tantrum right now, unplugging the whole EU until they fixed this with legislation.
8 Likes
As an ordinary user, in order to avoid falling foul of this law, what I would need is access to a blacklist of infringing hyperlinks which I could check before I publish a hyperlink.
Perhaps somebody could set up a helpful website of blacklisted hyperlinks. Doh.
6 Likes
Though this was acknowledged by the court (sort of). Paragraph* 34 of the decision states
For the purposes of such an assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another.
It’s sad that the court did not follow the advice of the advocate general but I don’t think the ruling is as bad as the BB article claims. Case Law is not as prevalent in Europe and is used to a lesser degree as binding precedent, and the court emphasised that it’s an individual decision on a case basis.
* is this the correct term?
3 Likes
Courts only make law in English speaking countries and British colonies.
Elsewhere, courts interpret law on a case-by-case basis.
Also, I don’t see how this is a particularly new precedent.
After all, there have been several cases against file sharing sites that did not host any infringing content themselves, just links or torrent files.
So if I put up a sign in my yard giving the location and short description of a criminal enterprise, am I now a party to that criminal activity?
1 Like
Wowsa. Didn’t the US already decide a long time ago one can make any LINK they want?
I mean isn’t this akin to putting up someones physical address? Can they claim copyright for that too? Especially those little private streets some larger businesses make (like Apple’s Infinite Loop).
Maybe any company pulling this shit should have their address removed from EMS and Fire datebases. We wouldn’t want to infringe on their address.
1 Like
I was under the impression that the FBI closes all the time torrent trackers, i.e. magnet LINK lists?
All I’m saying is, this site is known to try and push the limits of what’s allowed. I’m not saying their name should have any weight in court, but they often do things they know is illegal thinking they’ll most likely get away with it. As for this trial, before the trial started there was an extensive back and forth between them and Playboy about these links.
Of course, in the perfect world Playboy would have gone to the person who actually uploaded the images and left it at that. In which case this entire trial would have been unneeded.
Again, the EU now has conflicting precedents and, yes, needs to settle this in future cases to bring clarity. I don’t think, however, that suddenly the internet is going to crumble into little pieces (things like the link-taxation and breaking net neutrality are way more dangerous on that front)
Also “amicus curiae” is a Latin term, so it’s already “European”… 
Yeah, I’m not sure the EU courts would have asked a big corporation on the matter, but there are definately organisations that could have provided useful advice in this matter.
“When the wise man points at the Moon, the idiot looks at the finger.”
― Confucius
7 Likes
As far as I know the EU Court of Justice uses civil law principles. So every ruling is decided on it’s individual terms and not based on existing case law. Precedents have weight but are not binding in civil law.
1 Like
(it was a joke.)
If it’s the court’s conclusion that the person publishing the link assumes liability, does this mean that the actual web publisher of the infringing material is not liable or has now had some of that liability transferred to the link’s publisher?
But I also think nothing about a URL can be construed as infringing of copyright per se, and what some service may or may not provide as a response to that link is a completely ephemeral thing for which they are also solely liable. A picture of a thing is not the same as the thing itself, and a URL hyperlink to a web object is not the same as the web object itself. Am I going astray to say so?
And is easily avoided by not doing such a damn’ stoopid unnecessary thing that nobody but a greedy psychopath could possibly want.
Although I may be guilty of ‘failure of imagination’, so - sorry about that.
Just not very much.
I nominate the EU court.
This topic was automatically closed after 5 days. New replies are no longer allowed.
