European Court of Justice – Posting a hyperlink to a website which published photos without authorisation does not in itself constitute a copyright infringement

The European Court of Justice (ECJ) is considering whether linking to copyright infringing content should itself be considered infringement. Melchior Wathelet, advocate-general to the ECJ, has ruled that simply linking to infringing content is not itself infringement. Although the ECJ has yet to make its own ruling on the matter, the court usually takes the advice of the advocate-general.

Advocate General, Melchior Wathelet, says linking to a website doesn’t break the law even if it hosts copyrighted content without the express permission of its rightful owner.

http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-04/cp160037en.pdf

The opinion was raised due to an ongoing case between Playboy and a Dutch web page GeenStijl.nl. The Dutch site linked to leaked Playboy photos that were hosted on a file-hosting site File-factory, back in 2011.  Playboy successfully requested removal of the photos from File-factory, but the issue rose when GeenStijl.nl responded by linking to other public sources where the content was available.

In Wathelet’s opinion, linking is not the same as making the content available and the blame does lie with the original uploader. Though, this advice is currently only relevant to this case in particular, despite it being popular belief that this is going to be a landmark ruling in the near future.

Hyperlinking pic

The opinion also closes with a warning about what would happen if sites could be held liable simply for posting links to publicly available works. It states, “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.”

Is the advocate-general correct that linking to infringing content should not be considered copyright infringement?

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