Another landmark decision is about to clear the air regarding linking to pirated content, file lockers, and so on

Apr 7, 2016 21:10 GMT  ·  By

The EU Court of Justice may rule in the upcoming weeks that linking to copyrighted material that was uploaded online without the owner's consent (pirated content, torrents, file lockers content, etc.) may be legal under certain circumstances.

According to a preliminary ruling requested by the EU Court of Justice in the case of Sanoma Media (Playboy) vs. GS Media BV (GeenStijl.nl), the Advocate General Melchior Wathelet has advised the EU Court of Justice not to consider links to pirated sites to be copyright infringement.

Playboy vs. GeenStijl.nl

The whole case started a few years back, when a Dutch blog linked to a file locker where users could download leaked photos from a Playboy photo shoot.

Playboy requested the blog to take down the links, but the small site refused, so the publication had the page taken down through the site's ISP.

The blog then retaliated by linking to other sites that were linking to the file locker portal, and eventually, Playboy ended up suing the smaller site.

Dutch courts needed help in figuring out the case

Because Dutch courts didn't know how to apply the European Copyright Directive in this particular scenario, they sent the case forward to the EU Court of Justice, who then asked Advocate General Melchior Wathelet for his opinion on this matter.

Theoretically, this problem was already solved in 2014, when EU courts ruled that linking to copyrighted material online is not considered copyright infringement, and neither is embedding content.

This case was different because lawyers argued that Playboy's content was not made available by its owner, instead being uploaded online without permission by unauthorized third-parties, so the previous EU directive interpretations did not apply.

The ruling won't help torrent portal operators

Explaining his recommendation, Advocate General Melchior Wathelet says that, despite the content being put online illegally, the persons who commit a crime are those who upload or download the content, not the ones who link to it as an "act of communication."

As with most of these out-of-court opinions, judges tend to generally follow advice received from experts on this matter.

TorrentFreak reports that the EU Court of Justice has also said that this ruling does not have general applicability, since torrents sites, even if they just point to illegal content on other people's computers, usually have a different scope than generalistic news sites like this smaller Dutch blog.

This means that news outlets or personal sites may be entitled to link to pirated content, but not The Pirate Bay or Kickass Torrents, whose sole reason for existing is to facilitate copyright infringement.