EU: Linking to Copyrighted Content Is Illegal

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The European Union this week ruled that posting links to copyrighted content without permission and for financial gain is illegal.

The ruling is a win for Playboy magazine, but could have far-reaching consequences for the Internet. According to the Electronic Frontier Foundation (EFF), even nonprofit websites or individuals who link to infringing content can be liable for prosecution if they knew the material was in violation.

"This terrible ruling is hard to fathom," Jeremy Malcolm, EFF senior global policy analyst, said in a blog post warning of a "new dark era" for hyperlinks.

The case at hand dates back to 2011 when a Dutch website posted a link to an Australian data-storage website that featured nude photos of a popular television presenter. The photos were owned by Playboy and the Australian site did not have permission to host them. The Australian site agreed to remove them, but they popped up elsewhere on the Web, and each time they did, the Dutch website, GeenStijl owned by GS Media, linked to them.

The photographs were eventually published in Playboy magazine, which sued GeenStijl—one of the 10 most visited in the Netherlands—for copyright infringement.

In April, Advocate General Melchior Wathelet told the EU Court of Justice that the Dutch site was within its rights to post those links, but the court still had to issue a final ruling.

According to EU law, every transmission of work to the public must be authorized by the copyright owner.

"However, the Hoge Raad [Supreme Court of the Netherlands] notes that the Internet is overflowing with works published without the rightholder's consent," the EU court said in a statement. "It will not always be easy for the operator of a website to check that the rightholder has given his consent."

GS Media did not immediately respond to PCMag's request for comment. But in a statement according to Reuters, the company called the ruling a "blow to press freedom."

"If commercial media companies—such as GeenStijl—can no longer freely and fearlessly hyperlink it will be difficult to report on newsworthy new questions, leaked information and internal struggles and unsecure networks in large companies," the GeenStijl website said.

This marks a landmark case for the EU court, which previously ruled that linking to copyrighted content and embedding copyrighted videos is allowed if the copyright holder publishes the content publicly. But this is the first time the court has dealt with links to content distributed illegally.

"This judgement is a gift to copyright holders, who now have a vastly expanded array of targets against which to bring copyright infringement lawsuits," Malcolm said. "The result will be that websites operating in Europe will be much more reticent to allow external hyperlinks, and may even remove historical material that contains such links, in fear of punishing liability."

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