Complying With EU Copyright Law Now Requires Crystal Ball, Tea-Leaf Reading
Ars Technica brings us the news that web publishers are now responsible for knowing the copyright/piracy status of all the sites they link to:
A German court’s recent decision on copyright is "a first glimpse at the devastating consequences an earlier ruling by the European Court of Justice may have on the future of the Internet," Pirate Party MEP Julia Reda has told Ars.
In the latest case, a Hamburg court ruled that the operator of a website violated on copyright by publishing a link to material that was infringing, even though the site operator was unaware of this fact. …
The German case was unusual in that it concerned a link to a photograph originally released under a Creative Commons (CC) licence, thereby making it freely available subject to certain conditions. On the site where the copy in question was stored, the terms of the CC licence were not observed properly, which meant that it constituted a copyright infringement. The website owner that linked to that copy was unaware of this fact, and did not check that the CC licence had been followed.
The Hamburg court ruled that even though the link in question was not used to generate revenue directly, the site as a whole was commercial, since it sells learning materials via one of its Web pages. In the German court’s interpretation, this meant that it was "carried on for profit," and that the link to infringing material was itself violating copyright, in light of the CJEU’s guidance.
Before we discuss why this is a bad ruling, let us first consider the lawsuit which lead to the ruling.
The only reason we have this ruling is that someone thought it was a great idea to not only sue a site for failing to comply with a Creative Commons license but to also sue a second site which had merely linked to that first site.
If that sounds like a valid reason to file a copyright infringement suit then I would like to ask you to please die in a fire.
The proper response should have been for the court to tell the plaintiff to"stop wasting everyone’s time, you horrible little troll" and then move on to the next case, but then again sensible copyright rulings go against EU traditions and practices.
Where was I?
Oh yes, this ruling is flawed. It assumes that a web publisher can have perfect knowledge of the copyright status of all of their links.
As Viacom showed us in its lawsuit against Youtube, that isn’t even possible for copyright holders who have a direct financial interest, much less web publishers.
In that case, Viacom was suing over clips, some of which its own marketing dept had uploaded for promotional purposes. After they were pulled, the clips had to be re-uploaded because Viacom’s right hand didn’t know what its left had was doing.
And as Ars pointed out, this case centered on a CC license which had been violated, but that’s just a single situation.
What if a web publisher links to a page which is completely legal at the time that web publisher visited it, and then the page is updated later to include infringing content?
Or what if the license expires for the content on that page? Should every web publisher who links to that page be held responsible for the lapsed license?
The sensible answer is no, but apparently in the EU the courts think all web publishers come equipped with crystal balls or some other method for knowing the unknowable.
image by Tom Hilton