September 21, 2017

The Right to Link is Challenged Under EU Law

Court of Justice of the European Union main building Photo credit: Transparency International EU Office

Court of Justice of the European Union main building
Photo credit: Transparency International EU Office

Now merely linking is under attack?

Watch out, museums, historical societies, archives, libraries, Google, and others! The Court of Justice of the European Union (CJEU), the chief judicial authority of the European Union, on September 8 issued a landmark ruling in a case called GS Media v. Sanoma (C-160/15), concerning hyperlinking and potential copyright infringement. This interesting case expands upon a theme that has been present in Europe for some time—a copyright crackdown on linking, news snippets, and other content. The shift was led by a newly created “ancillary copyright” for news publishers—sometimes referred to as a “link tax.” (Spain and Germany piloted “ancillary copyright” rights for news publishers, allowing them to charge search engines and aggregators for providing links to their content.)

REDIRECTION WARS

This linking issue was uncertain in Europe since the CJEU’s earlier decision, Svensson and Others v. Retriever Sverige AB (C466/12) in 2014. Retriever Sverige AB was a Swedish company that operated a news monitoring site containing hyperlinks to articles on other websites. Svensson and the Others were journalists who wrote articles that were published on the Göteborgs-Posten newspaper’s website, where they were, according to the court, “freely available.” Why was “freely available” important? Under an EU copyright harmonization directive for all 28 member-states (soon to be 27 due to Brexit), the courts have to examine whether the links constituted a “communication to the public.” The CJEU in Svensson decided that a website that redirects Internet users through hyperlinks to copyrighted works which are already “freely available” online (in this case the articles on the newspaper website) does not infringe copyright in those works.

This decision made sense for this circumstance, but there were still worries: the scope of what is “freely available” was not detailed in the Svensson case. Nor were there consent issues with the authors of the news articles. These journalists knew that their content would end up on the newspaper website, so it should be no surprise to them that it was linked by other sites.

There are many sites that link to these types of “freely available” materials. However, not all situations are the same for online content. Along, then, comes our newest salvo into the EU Linking Wars: the GS Media case.

IS HYPERLINKING INFRINGEMENT?

The facts underlying this case were more akin to “Page Six” than serious journalism. In October 2011, the Dutch reality TV star Britt Dekker was photographed for the December edition of the Dutch edition of Playboy. Shortly after the photo shoot, a hyperlink to the photographs was leaked to Geen Stijl, a Dutch provocative gossip website, which published an article about the photographs and included a hyperlink to the image.

Sanoma, the publishing house of Playboy, bought an action against GS Media, owner of GeenStijl, to delete the hyperlink. The copyrights in these pictures had been transferred from the photographer to Sanoma. Therefore, Sanoma had the exclusive right to publish these photographs. And, according to the court, Sanoma had not consented to the publication of these photos on websites. As a result, there was a lawsuit.

Because this was a CJEU decision, in April 2016 the world got an early look at what the court might have decided. At the CJEU the judges are assisted by Advocates General, who give their opinions on legal resolutions to cases even before the CJEU judges deliver their own judgment. The assigned Advocate General to this case reacted the same way we might in the United States, questioning whether hyperlinking can be categorized as copyright infringement.

The Advocate General opinion concludes that when someone links to work that is protected by copyright, and published without the permission of its author, the copyright might be infringed by the party that publishes the copyrighted work on the Internet, but not by the party that links to the publication. Linking may merely be a pointer, and liability normally does not flow in that direction.

The opinion opines: “Posting of hyperlinks by users is both systematic and necessary for the current internet architecture.… If users were at risk of proceedings for infringement of copyright…whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the Internet….”

INTENT IS ALL

After all, hypertext links act as a reference guide to help identify content and speed the process of accessing the material. It’s what the web was designed to do. U.S. courts generally agree that linking to another website does not infringe the copyrights of that site. But if you are knowingly linking to works that clearly infringe, you might be guilty of secondary liability, for “intentionally inducing or encouraging direct infringement,” as we saw in the famous Supreme Court decision, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

Even as far back as 2001, courts have said stated that some liability can attach if you are knowingly linking to sites that feature pirated materials or exploitation of protected content. (See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001), where defendants were held liable under the Digital Millennium Copyright Act for providing links to sites with illicit decryption software, since the defendants knew that the encryption software was posted at the linked to sites, and stated the links promoted the dissemination of illegal decryption software.) Knowledge of the infringing activity adds a level of culpability. I know many librarians, professors, and teachers who find links to illicit PDF files online (on sites like Scribd and others) and use this as a teaching opportunity to talk information literacy, morality, and the law. Generally we discourage such links, for a variety of ethical and legal reasons.

PRESUMPTION OF KNOWLEDGE

However, the CJEU did not listen to the Advocate General opinion in GS Media. The court decided that if the persons hyperlinking must have known that the copyright-protected work on the original website was published without the consent of the copyright holder, the hyperlink itself also constitutes a copyright infringement. And, as if that wasn’t enough, the court placed an additional burden on the “knowledge” portion of the test. “Knowledge” of the illegal publication should be presumed where a financial gain is proved.

This is clearly a burdensome standard to adopt. Unlike cases in the United States where knowledge was a necessary element for liability to attach, here any proof of “financial gain” (a commercial action of some kind) is proof of knowledge, and the defense has an enormous hurdle to prove otherwise.  This is why presumptions in the law are difficult to overcome, and should only be used in limited circumstances. Having to rebut a legal presumption in court is tough.

This new case sets a high bar for defense on any institution, company, or other organization posting hyperlinks on their websites, because some of these websites have commercial activity—t-shirts, subscriptions, ad revenue, etc. If links are provided and there is a commercial purpose, knowledge must be presumed.

So what is the law in the EU now? In a best case scenario, a website operator could be held liable for posting hyperlinks to infringing material if made intentionally for financial gain. In a worst case scenario, an innocent website operator has links to potentially infringing content, and despite a lack of actual knowledge, there is a financial element to the website (ads, etc.). Now there is a presumption of knowledge, and infringement liability could attach. Even if the website is merely running ads on its page that link to infringing material (without actual knowledge of the infringement), it is likely that this action would trigger liability.

Add to that equation a new obligation on website operators to verify whether or not the content they are linking to is authorized. How do you do that exactly? How would liability attach if there’s no way to know that you just linked around a paywall? Might you be held liable for sharing that link? Yes. And if you run ads on your site, the court will make a presumption that you had knowledge.

A LACK OF DEFINITION

The depressing part is that if this decision is meant to crack down on or curb piracy, it probably won’t. It actually has great implications for publishers, advertisers, aggregators, search engines, and those sites that allow third party content to be posted by users. All it takes is a court to use this holding to prove that the website operator could reasonably have known that the material was infringing copyright and the website operator’s knowledge of the infringement will be presumed if the links were provided for profit or “financial gain.” What constitutes “financial gain” for this new presumptive knowledge linking test? Despite being a central theme of the new decision, this term was not defined by the court.

What does all this mean for our U.S.–based jurisdiction? Thankfully, not much. While foreign judgments could (or do) get brought to U.S. courts for enforcement (see Yahoo! Inc. v. La Ligue Contre Le Racisme et l’antisemitisme (LICRA), 433 F.3d 1199 [9th Cir. 2006], where a French civil rights organization failed to enforce a French court’s decision to ban Nazi memorabilia being sold by Yahoo!), we have a clear understanding of linking as a (mostly) liability-free action, whether nonprofit or for-profit, as long as we use common sense and don’t encourage or induce copyright infringement. Of course, no legal doctrine has been as unsettled by the Internet as jurisdiction. Could an EU law apply here in the United States? Maybe. If you post on a site that is in one of the 27 EU member states could you be hauled into an EU court? Perhaps, but—more often than not—the risk of that scenario is relatively low.

However, a recent court case in California discussed the nature of enforcing foreign judgments. In September a French copyright owner of 16,000 photographs of Pablo Picasso’s artwork sued a U.S. art editor in a French court because the editor had reproduced some of the photographs and sold the reproductions at a Parisian fair. The French court awarded the copyright owner € 2 million for astreinte—a French legal remedy with no U.S. equivalent. The copyright owner then used the California Uniform Foreign-Country Monetary Judgments Recognition Act to enforce his astreinte award against the art editor in California state court. The U.S. Court of Appeals found it to be within the scope of the Uniform Recognition Act, and remanded the case back to the lower U.S. court. The world is awaiting the final outcome.

It will be interesting to see the linking issue played out in Europe, as the EU Linking Wars will most certainly continue. The lack of definitions, additions of tests, and new presumptive burdens should ensure further interpretations from the EU in the future. And the decision in GS Media has been used already, in mid-October at the Attunda District Court in Sweden. There, the court ruled against a Belgian media company for providing a link to a video that had simply been uploaded to YouTube without the permission of the copyright owner. According to the court, the defendant had not been able to demonstrate that it had “no knowledge” of the unauthorized nature of the video. Therefore the court held that merely linking to YouTube had infringed the owner’s copyright without permission. And that spells further trouble for with linking and copyright in Europe.

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