European Copyright Society Says Hyperlinks (And Framing) Should Not Be Infringing

from the good-for-them dept

The Spanish Pirate Party points us to a recently released opinion by the European Copyright Society concerning whether or not hyperlinks themselves may be infringing. The paper was written by 19 European legal scholars, concerning a specific case before the European Court of Justice, Case C-466/12 Svensson, which is yet another case of a news aggregator being sued for daring to link its customers to relevant articles. The reporter, Mr. Svensson, argues that even though the aggregator, Retriever, only posted links, they were "making available" the work. The European Copyright Society is not buying it, noting that hyperlinking is much more akin to a footnote:
Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.

This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):
“Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
...
Hyperlinks ... share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”
Basically, since a hyperlink just points you somewhere it's not transmitting the work, there's no copyright violation. The paper goes into significantly more detail, citing case law around the globe to support its position. It also warns the court that while this may seem like a simple issue, it's vitally important to the health of the internet:
The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.
Also of note, is that the opinion paper says that the same reasoning applies equally to "framing." This is a bit more controversial, but we've always pointed out that embedding and framing are no different than linking, since they're merely pointing a computer from where to pull information, and the EU Copyright Society agrees:
In principle, we are unable to see why “framing” as it is often called, should be treated any differently for copyright purposes from hyperlinking.

[...]

In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.
They do say that framing may give rise to other forms of liability, including unfair competition or moral rights, but that is separate from the copyright question before the court.

Considering how much pushback there has been recently in terms of companies arguing that links are infringing, this is nice to see. Here in the US, there's a similar case going on between the Associated Press and clipping service Meltwater. Hopefully common sense wins the day in both cases, and mere linking or framing is not seen as copyright infringement.


Reader Comments (rss)

(Flattened / Threaded)

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    Anonymous Coward, Feb 19th, 2013 @ 3:31am

    It would be nice for you if this was the same conversation as the one addressing hyperlinks to infringinging content.

    Too bad it isn't, huh?

     

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      Anonymous Coward, Feb 19th, 2013 @ 5:29am

      Re:

      Irrelevant. Laws making hyperlinking a question of secondary liability make it untenable for any business to conduct its operations in an effective and timely manner.

      Why, you ask? Because each one would have to have a fully-trained IP legal team, which simply isn't viable for SMEs. You're effectively taxing all business time spent ont he Internet. If you cannot see how this is bad, both from an economic and a communications perspective, then I'd argue (quite reasonably) that you are for preserving a small minority of all business at the expense of everyone else.

       

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    That One Guy (profile), Feb 19th, 2013 @ 3:57am

    I really think in each of these cash-grabs(and let's be honest, that's all they are), the search engines should just right off the bat give those complaining exactly what they say they want, and just drop any links to their sites.

    After all if they are going to claim that links to their content are infringing on their rights, then it seems to me the most obvious solution is to simply remove the links, and not what they always try for, that of having those that are advertising for them and/or driving more people to them pay for the 'privilege'.

     

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    PaulT (profile), Feb 19th, 2013 @ 3:57am

    "Clearly, hyperlinking involves some sort of act an intervention."

    I'd even argue this isn't true. Not only can hyperlinks be created automatically (so, if the definition of "intervention" means a human has to approve it, that's false), but the content linked to can be changed after the link is created - meaning that if intervention makes the link location infringing, that may not be the doing of the site containing the link.

    It's utterly ridiculous that this question is even before a court, and just goes to show how amazingly out of touch copyright rules are with regard to modern reality. But, at least the court is being convinced that reality is what it truly is, rather than the fantasy version presented by terrified morons in the content industry.

     

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      Anonymous Coward, Feb 19th, 2013 @ 11:15am

      Re:

      I'm not sure I agree with your point about automatically created hyperlinks.

      Personally, I think that if I write a program to do a thing, and the program does something illegal, I should be liable for the actions of my program. For instance, suppose I write a bot that cralws the web seeking out potentially infringing content. Suppose that the crawler then automatically fills out DMCA takedown notices. If the bot testifies under penalty of perjury that obviously non-infringing content is infringing, I should be the one facing perjury charges, not the bot.

      Your point about content changing after it's been linked to is well made. On an even weirder level, it's possible for web content to change when it's accessed via a link or iframe. Detecting iframes with javascript is trivial, so making a page display different content from within an iframe is also trivial. There are also plenty of sites that bounce you through an advertising redirect when they see that you're coming into the site from an external URL (based on the HTTP request header). And there's plenty of links that will redirect you to different regional subdomains based on the geo-location of your IP address.

      Given that links don't necessarily show the same content when they're followed by two different people, the court pretty obviously made the right decision.

       

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        PaulT (profile), Feb 20th, 2013 @ 12:41am

        Re: Re:

        "Personally, I think that if I write a program to do a thing, and the program does something illegal, I should be liable for the actions of my program"

        I disagree, but I do love that you carefully chose an example that was deliberately infringing from the get go. To look at my point correctly, assume that the script was written for perfectly legitimate purposes, but then through no deliberate action of the author it picked up infringing content. Are you really saying he should be prosecuted for that?

        If so, that's really dumb. Not only would that have a chilling effect on people writing useful programs lest they be prosecuted, you're also wasting time on an innocent 3rd party rather than going after, say, the person actually hosting the infringing content. Remove the content that's being linked to, and all the links become irrelevant.

        "Your point about content changing after it's been linked to is well made."

        Thank you, but that really is one of the major concerns. A link is really only a placeholder for a 3rd party page or file. The court should only really need to be taught the meaning of the term "broken link" to understand how these things change without the knowledge or action of the person creating the link.

         

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    Jay Fude (profile), Feb 19th, 2013 @ 4:25am

    Berners-Lee?

    Hyperlinking is how the internet works. The news agency knew this when they put up their site. It is the basis of HTML... If they didn't like how the internet works, they can shutter their website, and go back to something that doesn't use hyperlinks... good ol' paper. That wonderful smell of ink and wood pulp. Maybe make some great big steampunk paper presses, that will bring the people back from this horrible linking thing! Besides, on the internet, you don't get to yell "Stop the presses!" Where would the news be without that?

     

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    Bergman (profile), Feb 19th, 2013 @ 4:45am

    There's a technical term for a newspaper that has no subscribers due to nobody knowing they exist: Out of business.

    The absurdity of suing people who are giving you free advertising by sending business your way is beyond insane.

    It would be like an author suing a library because their card catalog mentions the title of his book.

     

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    Vidiot (profile), Feb 19th, 2013 @ 5:15am

    Maximalist opportunity

    Never thought of it that way... that every footnote ever written could be considered infringing. True, it would be a radically maximalist viewpoint, but hey, those folks file specious lawsuits every day of the week.


    Growth industry here! Virgin territory! Set up shop as a footnote troll, and find riches beyond your wildest dreams!

     

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    Anonymous Coward, Feb 19th, 2013 @ 5:15am

    Frak me do we really need 19 scholars to state the obvious?

    Hyperlinks are not distribution of content, thus can't be infringement, they are also by themselves not encouraging infringement more so when the links are for the holder of the copyrights or legal distributor of that content that put up a distribution network and it is the one serving the content, which he holds absolute control and have total power over how it is distributed including many technical ways to discourage linking using temporary links valid for a session, blocking of people without a login cookie etc.

     

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      Lennart Regebro, Feb 20th, 2013 @ 11:10pm

      Yes we do.

      We *do* need 19 scholars to state the obvious, because in Sweden, people are in jail for doing what these 19 scholars agree should not be illegal.

       

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    Planespotter (profile), Feb 19th, 2013 @ 6:07am

    So... if it came to pass that hyperlinks were not infinging as all they do is highlight the location of something but require a third party to do something to access the content surely then the same would be applied to a .torrent or .nzb file? Could it be argued that embedding a youtube video link into a website that requires a third party to click "play" then falls into the same non-infringing catagory?

     

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      PaulT (profile), Feb 19th, 2013 @ 6:31am

      Re:

      Personally, I'd argue yes to all - those files are merely pointers to the content, they do not themselves contain the infringing files. I don't personally believe that code that merely tells a program where to download a file or where to stream it from should be infringing.

      I fear, however, that it's a more complex legal argument, although I would consider anyone going after every site embedding a YouTube video instead of addressing the one site where all of those "copies" are streaming from as an idiot.

       

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    Anonymous Coward, Feb 19th, 2013 @ 6:51am

    there is no way that linking should ever be classed as infringing and that is precisely why it will be classed as that! does anyone really think that the entertainment industries are going to let an opportunity like this get past them? lose an opportunity to inflict harm to more people, to more wed sites, to more businesses, simply so the industries can keep their heads planted firmly up their own arse and not join humanity in the digital age? no chance in hell!!

     

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    Ninja (profile), Feb 19th, 2013 @ 6:52am

    Shouldn't it be obvious? I mean we have been using citations in our articles, books and other production for ages now and I'm sure those morons have never complained. The only real difference here is that it's large scale citations.

     

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      Anonymous Coward, Feb 19th, 2013 @ 9:53am

      Re:

      The only real difference here is that it's large scale citations.

      More like the real difference is that somebody outside of the publishing cartel is making money by providing the references.

       

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    NaBUru38, Feb 20th, 2013 @ 9:30am

    "we've always pointed out that embedding and framing are no different than linking, since they're merely pointing a computer from where to pull information"

    Technically, it's true: the page has a link to the embedded content, so the browser downloads that resource and displays it.

    But in practical terms, embedding / framing is different from linking, because you see both pages at the same time. You know that embedding / framing is used to put ads on top of the original content. So the website that embeds content is benefiting from the system, unlike putting links, when the user leave the search website.

     

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