Latest European Court of Justice ruling muddles the waters for what's what in terms of copyright infringement

Sep 11, 2016 22:30 GMT  ·  By

In a surprising turn of events, the European Court of Justice (ECJ) ruled last week that linking to websites hosting pirated content is against the law and breaks the European Copyright Directive.

The decision came in a lawsuit filed by Sanoma Media, owners of Playboy Netherlands, against GS Media, owners of GeenStijl.nl, one of the biggest news sites in the Netherlands.

The news site had linked to a file locker, a website dedicated to hosting files, telling users that they could download nude pictures of Britt Dekker, a local TV presenter, from there.

Dutch news site insists on linking to pirated Playboy photos

The pictures were from a Playboy shoot, and naturally, Playboy Netherlands asked the news site to remove the link. The latter refused, but Playboy had asked the file locker to take the files down, which they did.

At that point, GeenStijl replaced the link to an ImageShack album, where some of the Playboy photographs were still hosted. When Playboy asked the news site to remove the new link, they refused again.

Irritated, Playboy filed a lawsuit. This happened in 2011, and after the case had gone through the Dutch legal system, it arrived at the ECJ in April 2015.

An out-of-court opinion sided with the Dutch newspaper

Earlier this year, in April, the puzzled ECJ judges requested help in solving this case, asking for an out-of-court opinion from EU's Advocate General Melchior Wathele.

Wathele advised the ECJ not to consider links to pirated sites to be copyright infringement, citing several reasons.

In the ECJ decision from last week, the court ruled that GreenStijl had a commercial gain from that page. Users that accessed the article did it only to follow the links and download the pirated content, which the newspaper knew had been pirated and were posted online without Playboy's consent.

  Having regard to the foregoing considerations, the answer to the questions raised is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.  

The ruling basically says that if you're making money off your online presence, you should check if the content you're linking to has been properly licensed.

In the past, EU courts ruled that linking to online copyrighted material is not considered copyright infringement, and neither is embedding content. This latest decision muddles the waters once again when it comes to online copyright infringement.