[x-pubpol] EU’S HIGHEST COURT TO WEIGH WHETHER HYPERLINKING WILL REMAIN LEGAL IN EUROPE

[Joly MacFie]

http://www.project-disco.org/intellectual-property/020116-eus-highest-court-to-weigh-whether-hyperlinking-will-remain-legal-in-europe/#.VrHR8_krLmE

​[Excerpt]​


​In *Svensson*, the CJEU concluded that a link *is* a *communication* within
the meaning of “communication to the public.” But it let the defendant off
the hook on the theory that the communication was not “to the public,”
because the hyperlinks provided by *Retriever Sverige* did not communicate
the articles to a “new public.” Simply put, the court reasoned that once
the copyright holder makes the work available on the web without technical
restrictions (*i.e*., no paywall), then posting a link to the material
doesn’t communicate it to any audience that wasn’t already intended by the
copyright holder. Thus, it’s fine to link to something publicly posted
online, provided it was posted with the copyright holder’s authorization.
No further licensing is required. So, common sense prevailed and crisis
averted, right? Not so fast.

*Svensson *left a crucial question unanswered, and perhaps that question is
already clear: What about a link to something that the copyright holder
*didn’t* authorize? For example, what if you post a link on social media to
a Buzzfeed article where one of the images that appears in the story wasn’t
properly licensed from a photographer
<http://www.project-disco.org/intellectual-property/021914-further-thoughts-on-svensson-and-the-perils-of-linking-part-2-of-2/>,
or you link to a leaked document
<http://www.hollywoodreporter.com/thr-esq/quentin-tarantino-withdraws-lawsuit-gawker-702249>?
And where does that leave search engines and other information location
tools, which can’t very well determine whether every image, video clip, or
article on the websites to which they link has been authorized by the
relevant copyright holders before providing you a search result?

This is the question that is before the CJEU in tomorrow’s *GS Media* case.
The defendant is a popular Dutch blog that posted links to photos meant for
publication in the Dutch version of Playboy magazine, but which were leaked
on an Australian server. No one knows who posted the photos to the
Australian server, but everyone agrees that the blog only posted links to
them. (For a complete rundown of the facts and lower court rulings, see here
<http://eulawradar.com/case-c-16015-gs-media-porn-hyperlinked-and-hyperleaked/>
.) [2]
<http://www.project-disco.org/intellectual-property/020116-eus-highest-court-to-weigh-whether-hyperlinking-will-remain-legal-in-europe/#_ftn2>

Because the ruling would apply to any link *accessible* in Europe, the
impact of the *GS Media* case will extend far beyond Europe. If the CJEU
rules that every web user, in Europe and beyond, is expected to verify the
copyright status
<http://www.ccianet.org/wp-content/uploads/2016/01/CCIA-Explanation-of-GS-Media-Case-on-Hyperlinking.pdf>
of
every item on a page before linking to that page, it could effectively
destroy the web as we know it today. Would you have to repeatedly check
back on the sites you link to, in case the content on the site you linked
to has changed? Would you need to confirm that their licenses are all paid
in full? Would you also have to verify the copyright status of links on the
pages that you’re linking to? [3]
<http://www.project-disco.org/intellectual-property/020116-eus-highest-court-to-weigh-whether-hyperlinking-will-remain-legal-in-europe/#_ftn3>
If
any of this were the case, social media, search, blogs, comment sections,
online journalism could be faced with unmanageable legal liability.

The *Svensson *case was an extreme one, and the CJEU recognized that an
adverse ruling could effectively break the web. The court attempted to
fashion a result that would avoid that. It remains to be seen whether the
CJEU recognizes that *GS Media* presents the same risk.
(For a complete legal analysis of the *GS Media *case, see CCIA’s Comments
on the case here
<http://www.ccianet.org/wp-content/uploads/2016/02/CCIA-Comments-on-the-GS-Media-Case-7.2015.pdf>
).

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Joly MacFie  218 565 9365 Skype:punkcast
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