Ridiculous German Court Ruling Means Linking Online Is Now A Liability

from the never-link dept

Earlier this year, we wrote about a crazy decision in the EU Court of Justice, that determined mere links could be direct infringement on commercial websites (with “commercial” being not well defined). Now as various courts in the EU try to put this ruling into practice, they’re already making a mess of it. In particular, a German case has set an impossible standard for a site, finding a site to have infringed on the copyrights of a photographer for merely linking to a photograph. And the backstory here is even crazier.

The image in question was originally uploaded to Wikimedia Commons by the photographer and put under a Creative Commons license (unfortunately, no one seems to name which CC license). And then this happened:

This picture was then modified by an unknown third person, who added UFOs to the picture that appear to be flying above the building. This new picture was uploaded by the third person on his website.

The defendant operates a website where he publishes and sells educational material that he creates. In the imprint of this website, the defendant posted a sentence that included the word ?UFO?, which linked to the modified ?UFO-Version? of the claimant?s picture. Clicking on the word ?UFO? a new browser window in which the ?UFO-Version? of the picture was shown would be opened.

The photographer deemed that this constituted an infringing use of his work and brought the defendant to court.

Now, let’s just review this because we’re already stretching all sorts of concepts to the point of breaking. The photographer uploaded an image under a CC license to Wikimedia Commons. Someone else modified it. Someone else — operating a site that sells educational materials — merely linked to the modified image from the word “UFO” — and that’s who gets sued.

This seems like a classic “Steve Dallas Lawsuit” in which the target is a corporate entity because “that’s where the money is” even if it makes no sense at all for the liability to be applied there.

And here’s the really nutty part: the German court agreed because of that insane CJEU ruling that says a “commercial site” should be assumed to know the copyright status of everything they link to. So merely linking to this silly modified photograph, the site itself becomes liable for direct infringement. That’s insane. Yes, (depending on the CC license in question), it’s entirely possible that the modified version was infringing, but that’s no reason to make a site that merely links to that image liable for direct infringement over it.

At this point, if you run a “commercial” website in Europe that links off site to anything, you have a tremendous liability hanging over your head due to the insanities of copyright law.

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Comments on “Ridiculous German Court Ruling Means Linking Online Is Now A Liability”

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Anonymous Coward says:

when is everyone gonna actually wake up and see that everything that is going on with the Internet atm is all caused by the insatiable desire of the entertainments industries to control everything that happens on it! every case that is ruled in favor of those industries take them one step nearer their goal and one step further that we, the people, lose as far as our unfettered usage of the Internet is concerned. Governments and courts are doing everything possible because they are up to no good on a daily basis and cant be seen to be going too far, too fast so have enlisted the help of the industries in clamping done on ordinary users, so it can be used how they want and not how we want. shout me down as usual, but mark my words, in less than 5 years the Internet will be under the entertainment industries control and we will have to get permission as well as pay for any and all uses. the ‘Free for All for Life’ which was the intention is being taken from us and we are just sitting back and watching it happen!

DannyB (profile) says:

Linking is merely giving directions

Telling someone that the Taco Johns is two blocks north and to the right is like linking.

Telling someone that the Crack House is two blocks south and to the left is also like linking.

Why should the first example above be okay (presumably it is okay?), but the second example would be a crime? Maybe someone would make the 2nd statement in order to aid you in avoiding the crack house.

beltorak (profile) says:

Re: Linking is merely giving directions

Telling someone that the Taco Johns is two blocks north and to the right is like linking.

Telling someone that the Crack House is two blocks south and to the left is also like linking.

Why should the first example above be okay (presumably it is okay?), but the second example would be a crime?

That’s a fairly apt analogy here, so here’s an answer. The argument goes that you should know that what goes on at the crack house is illegal, and therefore giving someone directions to the crack house is just as illegal. This is exactly what they mean – "people who link to things online must make sure the thing linked to is not infringing".

The problem under this logic is of course that you had no idea that crack was being sold out of the Taco Johns, so both are in fact illegal! Congratulations! You too are guilty of possession with intent to distribute!

DannyB (profile) says:

Re: Re: Re: Linking is merely giving directions

Why do you believe this would not be infringing?

We’re talking about people who are responsible for Hollywood Accounting and Payola, and claims that piracy is costing $74 TRILLION dollars, etc and similar insanity. (eg, greater than the entire world GDP combined.)

Maybe linking to a page that links to an infringement should also be an infringement. That is 1 hop away. What about 2 hops away? What about the six degrees of Kevin Bacon on the internet? Maybe it should just be infringement to link to anything on the internet that could recursively link to anything infringing. This would instantly eliminate search engines.

MDT (profile) says:

Internet to shortly become unusable in the EU

Any website hosted in the EU will have to remove all links, to avoid this, and put up a disclaimer on why. Any international company with business offices in the EU will have to institute a special check on their websites, and remove all hyperlinks if the destination is an IP address in the EU.

Also, if I were an EU based ISP, I’d start looking into stripping out hyperlinks, as the next obvious Dallas target is the ISP’s for sites outside the EU, after all, the ISP is delivering the content.

Once it hits a critical mass, the Internet will become unusable in the EU, and enough citizens (and more importantly to politicians, moneyed companies) will be ticked off that this will get fixed. But only when the economic impact hits home and everyone moves their websites and offices outside the EU, lowering the economy further first. Much as Spain’s Google Taxes got trashed quickly.

Roger Strong (profile) says:

Re: Re: Internet to shortly become unusable in the EU

They didn’t invent the Internet Protocol, but Europe was already well-connected with interconnected X.25 networks carrying services like Compuserve, Minitel etc. and of course email.

The “killer app” for the modern internet was the World Wide Web, which was invented in Europe.

That One Guy (profile) says:

Collateral damage, what's that?

So unless any site hosted in the EU, and especially germany wants to risk being sued, they basically have to not link to anything, ever, that they don’t personally own the copyright to.

Copyright infringement charges for linking to something someone else created. Chalk this up to yet another example of ‘The only people that respect copyright law are those ignorant of it, or that have a financial incentive for it being broken’.

Ninja (profile) says:

Reminds me of that landscape issue where people started to remove buildings and other things in images of some landscape because of copyright. These things effectively disappeared. We are disappearing our culture plain and simple.

Or, Europe is. If they wanna keep moving into irrelevance then it’s the right path. If I were any site owner in Europe I’d avoid Europe like the plague.

Wendy Cockcroft (user link) says:

Re: Duh

Mr Cressman, when you’ve actually looked up and learned about socialism, get back to me. It may amuse you to note that the endgame of communism is the abolition of the state, a fact not lost on Breitbart’s Steve Bannon, who knows more about politics than you do.

If we really did have far left socialism in Europe we wouldn’t have a military-industrial complex demanding the sacrifice of babes and sucklings in Yemen for jobs in England; they would only make what we need to keep the country safe. We certainly wouldn’t have the crippling austerity that has rendered many people homeless and many more using foodbanks. And don’t get me started on social housing – that’s being flogged to propitiate the great god Market, or something. And the Greek debacle would not have been allowed to happen.

Far left socialism? The watered-down version we’ve had since the Fifties has barely a drop of it in the mix now.

RespectThatItsNotTheUS says:

They are fighting for their culture

I know it seems harsh from a point of view of U.S. but Germany like France are fighting to save their culture one link at a time.

Watched a program this past week discussing the difference between Euro nations/states and the United States. In Euro, the literacy rate is higher in part due to people reading physical media, they stated that 60% of news was in magazine or news paper form, that the morning routine would be a coffee and a paper (imagine how quaint that is).

The linking or publishing in part or whole of newspapers or magazines undermines those said physical media forms and with it, pushes the narrative to fake news or headlines vs the stories and full content.

I sickens me that folks here in the U.S. are pushing other countries to be more like the U.S. media, when the media here is bag loads of deplorable.

The U.S. constitution doesn’t extend beyond the borders, perhaps it’s time to realize that and respect that other countries with higher literacy rates wants top preserve their culture and keep the clowns that spread false information or make a quick buck clickbaiting content that wasn’t produced by those same linkers.

That One Guy (profile) says:

Re: They are fighting for their culture

So lemme see if I have this right:

People in the EU are more literate because they read more physical stuff, rulings like this are good because they make it more(if not effectively impossible) difficult to host things digital, which will push people back to physical medium, and all this is to protect people from ‘fake news’ and catchy headlines?

Yeah, I don’t think any comment I could make would do that pile of absurdity justice. If the good old paper can’t compete with the digital equivalent, leading to illiteracy and puppies being born with only half a tail then it’s on them to step up their game, not the courts to hamstring sites to give them an advantage and force people back a few decades.

Anonymous Coward says:

Re: They are fighting for their culture

“The U.S. constitution doesn’t extend beyond the borders, perhaps it’s time to realize that and respect that other countries with higher literacy rates wants top preserve their culture and keep the clowns that spread false information or make a quick buck clickbaiting content that wasn’t produced by those same linkers.”

First, I do agree that fake news is bad except that it usually only takes me about 30 seconds to determine if it is fake or not. Otherwise your argument is null since the company being sued is a person that sells educational materials and doesn’t have anything to do with the news, clickbait, or even US Media. Basically that ruling is eventually going to break the internet in EU. The internet lives by linking and will break apart if suing third parties becomes popular. Maybe EU should go back to Minitel to control it better. The internet allows everyone a voice, once you start making things illegal on the internet. It can easily lead to abuse as we see time and time again.

DannyB (profile) says:

Re: They are fighting for their culture

The literacy rate of a nation is largely a reflection of its education system.

If a newspaper wants to publish or not publish its content online is the newspaper owner’s own choice. Whether you, or whether I agree with the owner’s choice doesn’t really matter.

If online newspapers undermine dead tree newspapers, then that’s progress. The telegraph undermined the pony express. The telephone undermined the telegraph. The automobile undermined the horse and buggy. Things change.

Fake News is unrelated whether news is online or in dead tree format. Every country probably has had for decades, tabloid news in dead tree format that is loaded with fake news. The real question is how gullible are people? The real lesson is determine what news sources you trust — no matter what format they are published in.

Anonymous Coward says:

Re: Re: They are fighting for their culture

How in hell do you preserve literacy rates by banning linking?

Also how is reading physical media superior (or inferior) for that matter to reading the same media online.
The “routine” of coffe & morning paper pretty much only applies to people (most of them MEN) that are over 50.
Most 30 and even 40 year olds (and under) will check the news on a smartphone, tablet or PC.

No, this is just European leaders trying to squeeze aggregators for money.

Also shitty news are a thing in print too. Hell rags still sell by the truckload. Especially paparazzi ones. Bought by old people who like to act appalled at “how the youngsters act nowadays”.

DannyB (profile) says:

Re: Re: Re: They are fighting for their culture

By banning linking, you force people to read the same words in dead tree format instead of online.

Words printed in dead tree format have a superior magical quality of making you more literate.

It is not just old people reading trash rags. There are also younger people looking for important news like: “Space Aliens Ate My Baby!” and the like.

Roger Strong (profile) says:

Re: Re:

Americans don’t like German censorship and opposition to open linking, while Germans don’t like how the NSA spied on them and their government.

You refer to the claim "The Internet interprets censorship as damage and routes around it!" Bruce Sterling gave the counterpoint: "The NSA interpreted privacy as damage and routed around it."

Anonymous Coward says:

An alternative outcome?

Well, it seems to me that *everything* Google links to is copyrighted content they don’t have the copyright on, they could just shut down their search engine for any EU IP addresses.

Of course, this would result is all manner of internet drama. To get their Google back, they could 1) rewrite the law, or 2) have everyone start licensing everything on the web CC0 with blanket licenses at the domain level (almost a “If you don’t want to give it away for free, then it’s not welcome on our site” sort of policy).

Of those two options, which one do you think would happen faster?

Anonymous Coward says:

Companys will move their servers out of germany ,
to avoid getting sued ,
there might be german websites based in the uk.
Whoever wrote this law does not understand the way the web works or is some kind of pro copyright fanantic.
Every year some eu country seems to pass a law that
breaks the web .The eu needs to pass a law to protect fair use for websites that allows displaying part of a text
or part of an audio or video clip for the purpose
of education ,commentary ,criticism or parody .
And for use by any website as part of reporting the news .

Anonymous Coward says:

Pinky and Brain channel Klink and Schultz...

Pinky (Schultz): Atten Hut, Col Klink, those darn googles are making all the moneys from our webey things, what are we going to do?

Brain (Klink): First they foiled my plan to make them pay when they linked to me, then they foiled my plan when I tried to make them pay to link to my pictures. I have finally figured it out, we will stop all that infernal linking and see how those googles like it now.

Pinky: How are we going to do that?

Brain: We will make it illegal to link to us, and then when the world starts to collapse without access to the German riech, we will allow them to link IF THEY PAY US… Dun Dun Duu (guest appearance by Belt, all rights reserved, all your bases are belonging to belt)

And here we are, with Pinky/Brain (Klink/Schultz) running Germany and trying to control the rest of the world.

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