No, it isn’t always illegal to link to copyright infringement content. At least in Europe, anyway.
A Dutch blog writes an article that contains links to leaked Playboy photos. Clicking on the link takes you to well-known leaked content dumping ground FileFactory. Playboy publisher Sanoma finds out, files a takedown notice to remove the photos. End of that story.
But, wait. The Dutch blog finds another link and updates the article with the brand new link to the leaked photos. Sanoma asks that that they be taken down at the other site. Yet the Dutch blog continues finding and posting even more links. This situation goes on for some time.
After a while, Sanoma cries foul and sues the blog. The case goes to trial. It’s suspended in just 2 hours. Why? Sanoma wants a preliminary ruling from the European Court of Justice. A Dutch court asks the EU Court of Justice to consider the links as simply a “communication to the public.”
The trial is put on hold.
The European Court of Justice takes the case. They agree with the Dutch court. On what grounds? “Linking” isn’t the same as “making available.” The Court releases a statement to clarify what “communication to the public” means:
“The posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally.
In contrast, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.”
The statement is released. But the Dutch blog is guilty for having posted the links. Why?
“It is undisputed that GS Media provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorised the publication of those photos on the internet…. GS Media was aware of the illegal nature of that publication and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication.”
The Dutch blog releases a final statement on their blog,
“But we will not give up: for that press freedom we will fight on, in this case and beyond. Until then: careful when hyperlinking people, as today a minefield has been laid on the free internet.”
Hyperlink image by SumAll, licensed under Creative Commons Attribution 2.0 Generic (CC by 2.0)