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EU court: Linking to pirated stuff doesn't breach copyright... except when it does

Confused? Don't worry, that's the idea

A confused man
Confusion: Yes, that's the point of this

Analysis The EU’s bizarre, home-brewed doctrine of copyright evolved further today, with a ruling that URLs linking to infringing material are not themselves an infringement, except when they are. Confused? You should be – and perhaps that’s the idea.

Today’s Court of Justice of the European Union (CJEU) verdict in the Svensson case, or GS Media vs Sanoma, was anticipated across the EU, and hinged on the opinion of a former Belgian minister once heavily criticised during the Dutroux paedophile scandal, EU Attorney General Melchior Wathelet.

In the Svensson case, a Dutch lad’s mag website linked to a file on cyberlocker FileFactory, containing 11 images of an unpublished Playboy photoshoot. The link advised readers they could download the files “HERE”. Sanoma is the publisher of the Dutch edition of Playboy and had the rights to the photos; GS Media didn’t. GS Media refused to take down the link. Sanoma sued successfully in an Amsterdam court. You may, at this point, wonder why m’learned friends in Luxembourg needed to get involved, as the case seems a straightforward infringement, but here two factors come into play.

Firstly, any court at any level in any of the 28 EU member states can bounce an issue up to the ECJ. This means that a judge can wake up one day and “request clarification”. And increasingly they do. Secondly, the CJEU has engaged in an activist role, making law rather than interpreting it. It’s openly fed up with the lack of political progress in Brussels, in areas such as the single market. The combination of these two aspects – stupidity and ambition – creates a fertile ground for mischief. In the area of copyright, the CJEU has demonstrated this by developing a non-standard legal doctrine that’s not in the Berne Convention on copyright, but is one very much of its own devising. One that’s very likely based on a mistranslation, as we explained here.

According to the man who wrote the WIPO book on copyright and is the Continent’s leading copyright scholar, Dr Mihály J. Ficsor, the ECJ has seriously fucked up by putting the Berne words in a different order to derive a new meaning. Rather than decide whether a possible infringement is at first “a new communication to the public” – which is the starting point world+dog uses –the CJEU now starts by mulling whether an act is a “communication to a new public”. And it’s tried to pin this down over several rulings, with bewildering results. Here’s only part of their handy guide:

In his opinion in April – which the ECJ is free to ignore (and did in the Schrems vs Facebook case) – Wathelet said that hyperlinks should not fall under copy protection. This caused a shock wave around rights-holders since it meant EU works were not protected by copyright in the EU. If implemented, the superstate had effectively declared itself a pirate utopia, nullifying the exclusive right of authors to control distribution of their work. Rights-holders would have to use tort law, or other legal methods, to protect their rights. This, legal scholars pointed out, put the EU in breach of the Berne Convention.

But the ECJ rejected Wathelet’s interpretation in its most extreme form, namely, if you know that a work is unlicensed and you link to it, then you’re infringing. It’s doubleplus bad if you’re profiting from the link. This ought to, on the surface of it, protect the innocent linker and punish the cynical such as GS Media, whose “how was I supposed to know that?” defence won’t wash.

Or at least, it will until the next time the ECJ gets to redefine copyright, which will probably be in about ten minutes or so. And every few weeks.

What a time to be alive.®

Bootnote

The arbitrary nature of EU justice was what prompted Boris Johnson – not hitherto noticed as a Eurosceptic – into taking a leading role in the Vote Leave campaign. His wife, a human rights barrister, explained why here

You can find the court ruling here (pdf), and the press release here (pdf). ®

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