Terrible Ruling: EU Decides That Mere Links Can Be Direct Infringement

from the that's-not-how-this-works dept

Last year, we talked about an important copyright case in the EU regarding whether or not linking to infringing material was, in itself, infringing. The case involved a blogger in the Netherlands, Geen Stijl News ("GS Media") linking to some pre-publication Playboy photos. There had been an earlier case, the Svensson case where the European Court of Justice got things right with regards to whether or not hyperlinks could be infringing, but there were some questions left open in that ruling. The court in the Svensson case found that linking to authorized content wasn't infringing. But what about unauthorized content?

And now we have the ruling and it's not very good. Some are trying to spin it as a good ruling, because it basically says that if the link is not for profit, then it's not infringing, but the worrisome part is that if the link is considered "for profit" then it can be direct infringement. Basically, the court tries to split the baby here. It notes concerns that many people had about how posting a mere link to content could be infringement, in that many times those posting the link will have no idea if the original content is authorized. But rather than actually deal with that specific issue, it just basically said "well, if it's a for profit effort, then they can afford to figure out if the content is authorized."
when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
Some are celebrating the flip side, which says that if the linking is not for profit and without knowledge that the work is infringing, then it's not infringing, but even that is troubling. Here's what the court says for the "not for profit" linking:
For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.

Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.
But what the hell does all that mean in practice? Well, that's a complete mess. First of all, as we've been discussing for many, many, many years, drawing the line between "commercial" and "non-commercial" is not nearly as easy as it seems -- and it's basically the same for "for profit" and "not for profit" in the EU's new standard. Just last week we wrote about yet another legal dispute over that exact fuzzy boundary. In an age where anyone can put ads on their site, or use social media to promote their own work or business, how do you determine what's for profit? It's not hard to see how a copyright holder may, for example, point to someone linking to an unauthorized copy of their work and then point to a tweet promoting their work, and say that "well this person uses social media for profit, so this link is infringing."

And, of course, it's even worse for aggregators, search engines and the media. All of those will be considered for profit, so any link to infringing content may now be considered infringing itself. That's... really bad for the internet in Europe. You can see why the Court of Justice tried to split the baby here, but you should remember that splitting the baby isn't a good result. It's designed to threaten to kill the baby to flush out a better result. In this case, one hopes that the end result of this dangerous ruling will flush out an improved copyright law in the EU that doesn't make links infringing. Instead, we seem likely to be getting the exact opposite.

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    identicon
    Anonymous Coward, 8 Sep 2016 @ 12:01pm

    Mike Masnick just hates it when copyright law is enforced.

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      identicon
      Hey Herc!, 8 Sep 2016 @ 12:37pm

      Re: mike manzik

      look I'm not saying that Mike Manzik raped and killed that girl in 1990 , but I don't understand why he won't stand up for rights holders that give rights creators their pittance.!!

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      • identicon
        Anonymous Coward, 8 Sep 2016 @ 4:15pm

        Re: Re: mike manzik

        Also known as the Glen Beck gambit. Which is also copyrighted. You too are a fucking hack. For a "creator" you only seem to use other people's material. Almost like you took it from them without recompense. What was the word you twats use for that again?

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    • identicon
      Anonymous Coward, 8 Sep 2016 @ 3:26pm

      Re:

      Hey dipshit, that phrase is copyrighted, you fucking hack.

      reply to this | link to this | view in chronology ]

    • icon
      wereisjessicahyde (profile), 9 Sep 2016 @ 3:42am

      Re:

      No. He hates it when it is abused.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 12:05pm

    The legal industry and old guard media love when innovation is destroyed. Yeah, that internet thing with all those links wasn't so useful to anyone...lets kill it for fun and profit..

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  • identicon
    Anonymous Coward, 8 Sep 2016 @ 12:05pm

    it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website

    How? There is no central registry of copyright holders and who they have licensed the works that they control to.

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    • icon
      That One Guy (profile), 8 Sep 2016 @ 1:46pm

      Re:

      Yeah, the idea that people should 'just know' that something has or has not been posted with 'authorization' is absolutely absurd since unless you can personally find the copyright owner(good luck) and ask them, there's no real way to check the status of a given piece.

      Is it posted with permission, without permission, without permission but still in the clear for fair use or similar reasons? Who knows! This ruling is going to have some nasty repercussions as the simple act of linking to anything turns into the equivalent of threading a minefield blindfolded.

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      • identicon
        tp, 9 Sep 2016 @ 8:26am

        Re: Re:

        > the idea that people should 'just know' that something has or has not been posted with 'authorization' is absolutely absurd since unless you can personally find the copyright owner(good luck) and ask them, there's no real way to check the status of a given piece.

        Detecting this is very easy. It's called "effort calculation". You just look at the product, split it to it's components, and estimate the time it took to create each part. If that process gives you results that the author would have never been able to create it himself, there's significant chance that he mixed/matched some content without a license. You can safely assume that if the author cannot create it himself, he wouldn't have money to buy that same content either. Getting the money takes about the same effort than creating the content from scratch, and buying it with money instead of creating it yourself just saves some time -- this transformation from effort to money does not change the _amount_ of effort involved. So examining the product carefully is enough to detect how large team is necessary to create the work. This allows evaluating if the author's claims of ownership of the copyright are valid or not. This is a necessary step in evaluation if the work has been authorised by the copyright owner, essentially by choosing if you're assigning credit of the work to the right people.

        Once you have the right author information, you just need to find the link from the author to the people who are distributing the work. Normally the product includes a page about authors and who is the distributor. Authors know how to embed that information to the product in such way that other people have trouble replicating that process without breaking the product. Everyone who evaluates products can easily do all these steps and decide for themselves if the information about the products are correct. If there is doubt about the origin of the product, you can use a little more effort to check these details.

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        • identicon
          Anonymous Coward, 9 Sep 2016 @ 8:36am

          Re: Re: Re:

          A simple counter example to your calculus: The Fifth Imperium. While not an official site, it has the blessing of Baen Books.

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          • identicon
            tp, 10 Sep 2016 @ 8:45am

            Re: Re: Re: Re:

            > A simple counter example to your calculus: The Fifth Imperium.

            The process does not need to be perfect. Its enough that it gives you enough information that you can trust the process. It would be nice if it doesn't allow you to make big mistakes.

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            • identicon
              Anonymous Coward, 10 Sep 2016 @ 9:53am

              Re: Re: Re: Re: Re:

              The problem is your calculus is not even close, as my second comment demonstrated. It is trivial for dedicate amateurs to match or exceed production quality that only a few years ago needed a T.V. studio. Allowing a slightly longer time scale for production, amateurs can produce just about anything that the studios can especially given green screen technology and modern free animation software.
              The other problem with your process, is that small publishers and individuals cannot afford the time to deal with requests to check permissions. A permission based system would cripple the Internet, but there and again, that is what the legacy industry wants.

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        • identicon
          Anonymous Coward, 9 Sep 2016 @ 8:46am

          Re: Re: Re:

          As for the idea that quality production cost too much for amateurs to afford I give you Star Trek Continues.

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        • identicon
          Anonymous Coward, 10 Sep 2016 @ 9:32am

          Re: Re: Re:

          All that argument and it turns out you're mixing copyright infringement with plagiarism. Try again.

          Or better yet, going by your post history, don't. You've already demonstrated a considerably abysmal understanding of what the law says, more so since it doesn't say what you feel it should.

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  • icon
    Jeremy2020 (profile), 8 Sep 2016 @ 12:17pm

    The EU really doesn't like that internet thing. All dem tubes and shit.

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    Roger Strong (profile), 8 Sep 2016 @ 12:22pm

    This effectively extends "The Right To Be Forgotten" - really, the right to force others to forget - to any whistleblower site.

    And how specific a link have to be? If The Intercept publishes a damning email from some corporation, is it only the link to the individual story that's infringing, or ANY link to The Intercept? The latter may seem unreasonable. But based on past stories here, obviously a lot of IP lawyers would disagree.

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  • identicon
    Anonymous Coward, 8 Sep 2016 @ 12:48pm

    Let's all play the fun new game of 6 Degrees of Infringement!

    How can you prove your favorite website infringes on copyright in as few hops as possible?

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  • identicon
    Hey Herc!, 8 Sep 2016 @ 12:55pm

    Lawsuits for the few! incompatability and exclusion for the many!

    Wait i've seen this argument before its why in the mid late 90's people thought we should open source or eliminate flash and java script.

    ideas and thoughts are not your property.
    If they where we would be stuck in that place before the printing press
    all progress comes from things that are free, there are no historical exceptions to this.

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    • identicon
      Anonymous Coward, 8 Sep 2016 @ 1:05pm

      Re: Lawsuits for the few! incompatability and exclusion for the many!

      When it comes to money & power, bloodshed is how things get changed.

      Every War has only ever been fought over money and power. If anyone ever tells you that a war was about something else, they are either tools or lying to your face and laughing at your gullibility.

      WWIII is closer than ever and guess who is trying to get it started? The Government's claiming to prevent it while taking action to ensure it!

      The EU is about one of the most bastard and evil organizations on the planet. No wonder Brexit happened.

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      • identicon
        Hey Herc!, 8 Sep 2016 @ 1:20pm

        Re: Re: Lawsuits for the few! incompatability and exclusion for the many!

        GIANT METEOR 2016!

        I'm not being paranoid people act in there own narrow interest most of the time, you see that in all politicians, but they are not the only ones, I myself advocate for the position that benefits me most(ie not to be excluded because I don't on the copyright on a 200 year old folk tale..see all of Disney)but I am not a leader or in power in anyway, the Greeks may not have conducted things in the right way but the exile idea was not wrong.. imagine if that vote could have happened for Bush.

        your position of power matters that's why cops, politicians and government employees should be held to a higher standard, that's why managers and CEO's should be held to a higher standard, their actions if they are bad harm more people.

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        • identicon
          Anonymous Coward, 8 Sep 2016 @ 2:09pm

          Re: Re: Re: Lawsuits for the few! incompatability and exclusion for the many!

          I myself advocate for the position that benefits me most

          Therein lies the conundrum. It is easy to understand why people advocate for a position that benefits the self the most.... but almost none ever ask if that does actually benefit them in reality? People overdosing on drugs are a great example of people doing something they really like but is actually killing them.

          Often times most people do not realize that what they think is best for them is not the best thing at all. Most realize it when they are older and think back and say... maybe I should have taken that left at Albuquerque. And I am not saying that to be specifically facetious either.

          I have found that is is extremely difficult to impart any wisdom or knowledge to any person that still votes in a political party. It is as if by definition to be able to vote for someone running on a party ticket you must sacrifice your own free will and become a rigid mouth breather. I have found that neither party has a particular monopoly on the stupid either... just that they have different types of mental disabilities.

          If you ever feel insulted by someone belittling or insulting any particular political group in general, you are likely a mouth breather yourself and should take heed of that you are feeling insulted on someones behalf for no reason.

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          • identicon
            Hey Herc!, 8 Sep 2016 @ 3:53pm

            Re: Re: Re: Re: Lawsuits for the few! incompatability and exclusion for the many!

            well this is a lot of random and it's easy to dismiss me and what I say if you totally ignore what I said.

            so I'll just post what I said after you cut it out.

            "...(ie not to be excluded because I don't on the copyright on a 200 year old folk tale..see all of Disney)but I am not a leader or in power in anyway, the Greeks may not have conducted things in the right way but the exile idea was not wrong.. imagine if that vote could have happened for Bush."

            lots of word salad, and a not ironic or comical bugs bunny reference ? ok.

            lots of deflection no substance

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  • identicon
    Anonymous Coward, 8 Sep 2016 @ 12:58pm

    As always...

    ...see ya, France. And now the rest of the nutters too.

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  • identicon
    CultureAndJobs, 8 Sep 2016 @ 2:50pm

    ItsAboutPreservingCulture

    I tend to think of these stories focusing on what they're underlying results would achieve.

    From my perspective I believe this is about preserving cultures and community business.

    I feel that if they could kill off Google entirely, they would, as it would help focus eyeballs on local EU content coming from local sources keeping the local cafe open for business, with customers that actually talk to one another, thus being part of their culture...

    For perspective, here at home, gentrification is killing off community cultures up and down both coasts in favor of everything that looks the same, purchases that are same, behavior that is same, dress the same... we're the embodiment of national brand names...

    Within the EU, especially France they want to remain French... and I don't for one minute blame them for their attempts to do what is best for their culture.

    That said, the genie is already out of the bottle. Putting it back with these type of directives isn't going to be effective.

    Why is it wrong to NOT want to be homogenized and like everyone else?

    Here's the MEME
    Google, killing communities one link at a time.

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  • identicon
    tp, 8 Sep 2016 @ 3:21pm

    Copyright...

    There's good reasons why copyright infringement needs to be illegal. The facts are uncontested: Copyright owners cannot reach all channels where the product could be available. Thus everyone else in the world need to do a little more work to find the authorised dealer to get access to the product. You're not allowed to use unauthorised channels to access the product, or else the market is overtaken by entities that simply forget to give the original author any of the money they collect.

    All this is fundamentally commercial activity. End users want products. Publishers distribute the product and they are collecting money from the users, and are supposed to give part of it to the original author. Author's work is already done when all this happens, and the investment of time and money already spent.

    In the document, EU is considering how internet technology interacts with the copyright rules. Url linking is obviously significant way of using the internet. After author spent possibly several years creating the work, checking every url for it's copyright status is not significant effort. Companies should simply spend the effort, in case they decide to publish those links. All the yellow press and search engines and encyclopedias of the world should simply check their urls. The url can be either legal or illegal, depending on what content it points to. People who post those illegal links all over the world, should be found and their illegal activity stopped. People who evaluate content on the internet, will need to check the links before opening them. In fact, unauthorised channels that distribute content without permission will simply need to disappear.

    There might be good reasons why this awesome content is not available in your local area. The author's reach for controlling his content is simply not extensive enough to reach all the markets where there might be users wanting products. Those places where this author cannot access -- should not have the product available. Markets need to have significant gaps, so that local authors can fill it with local content -- and maintain it in that area. The other author is still busy handling his own area, and that product should not be distributed in areas where it cannot be properly maintained. Authors only get access to the markets, if those gaps are available. Market access is the main problem copyright rules are designed to solve. Infringements fill those gaps with content from popular authors who are already busy handling their huge user base, and the effort is not properly distributed between all authors.

    Internet authors are struggling with something called "pressure". It takes one determined person who sends emails after emails to make someone's life miserable. If you have 2 million people looking at your product, this is guaranteed to break everything. Author's attention is being taken away by irrelevant discussions with the user base. Other people want to attach their products to already popular content, hoping for some of the success formula to move from popular content to their own content. All authors do not want more popularity. Selected few authors are already burned out maintaining their user base, and they need to do protective actions to distance themselves from their fans. When this happens, copyright infringements can only cause harm - it increases the pressure and makes it last longer. Somehow pirates always choose the most popular content. They choose the authors who already have problems with their fan base and make the problem much worse.

    So why should the author get any money for his work? Handling the user base once your content goes viral is hard work, and might require money. Creating new content obviously takes effort, but the real problem is all the fans who want piece of the action.

    So what does authors do when they find out that the fans are killing them with pressure? They go to the site where the product is available, and make it unavailable to more people, until the problem is solved. Now what happens when it's distributed illegally? How can the author remove the permission to distribute it? They can't do it. It's going to be available in unauthorised channels forever, and the author will need to move to other side of the planet to avoid those requests. When this happens, it's guaranteed to cause some legal actions about copyright infringement.

    Obviously internet companies know about this problem. Youtube does not allow users to directly contact the video publishers - they explicitly do not publish people's email addresses. This is kinda important for the popular content.

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    • identicon
      Hey Herc!, 8 Sep 2016 @ 4:08pm

      Re: Copyright...

      sorry I'm having a problem WITH THE WALL OF TEXT......... but lets address a few things you say.

      1) now doesn't seem to be the best time to hold up youtub as a beacon of creator payments since they have just stolen the payments from people as popular as (and I can't believe I'm referencing this) pewdiepie who has 47 MILLION, YES MILLION SUBSCRIBERS. they de-monitized his videos so.

      2) there are no examples of creator middlemen that have not tried to fuck over artists none.

      3) home recording was killing what deserved to die in the 80's

      4) never should a copywrite be allowed to anyone that is not the creator of that work. this system is insane and destructive to all of western civilization

      There are no examples when restricting ideas, thought or innovation has benefited anyone but a tiny subset of people, take the LUDDITE EXAMPLE... an American stole the automated loom from a Brit, it snow balled into assembly lines which is one reason America won their war of independence. if there had been a way to prevent that as you prepose.. where would we be?

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    • identicon
      Anonymous Coward, 8 Sep 2016 @ 5:43pm

      Re: Copyright...

      Oh, hey! It's the chucklefuck who claims that copyright law means that authors are now allowed to wipe out old works from the market so their new work can compete, and that a lack of copyright law means that companies need to provide tech support for illegitimate software (which was never a part of the law to begin with).

      How is it that the people pushing for copyright enforcement are the exact same people who don't understand a lick of it?

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      • identicon
        tp, 8 Sep 2016 @ 6:03pm

        Re: Re: Copyright...

        > How is it that the people pushing for copyright enforcement are the exact same people who don't understand a lick of it?

        yup, that's because we never wrote any copyrighted works. There never was anyone asking for permissions to distribute. Or we couldn't get it popular. Or none of our fans ever called us in middle of night, looking for business tips. None of that ever happened.

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        • identicon
          Hey Herc!, 8 Sep 2016 @ 6:42pm

          Re: Re: Re: Copyright...

          Amazing that you two project so much and accuse me of the exact opposite of what I said and that I support the exact thing your are advocating.

          this post is technically copyrighted fyi

          if you quote me you owe me according to you so I'm waiting for my check

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        • identicon
          Anonymous Coward, 8 Sep 2016 @ 6:57pm

          Re: Re: Re: Copyright...

          We don't have to look any further than this thread to see that you don't understand copyright law.

          Seriously, you think copyright law allows an actor to pull a movie off the shelves because he can't stand the fact that it's too popular.

          That, and the other garbage you've tried to foist as legal wisdom, says a lot.

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          • identicon
            tp, 8 Sep 2016 @ 7:27pm

            Re: Re: Re: Re: Copyright...

            > Seriously, you think copyright law allows an actor to pull a movie off the shelves because he can't stand the fact that it's too popular.

            well, hopefully the movie distribution company has some large organisation for handling requests from the fans. Actor's name in the credits is kinda bad though, there used to be phone books or they might find the home address. Just some time ago there was news that some famous actor gets fan visits to his home from people who want selfies or some crap like that.. If it happens alot, it might become kinda annoying...

            Copyright owner clearly has a way to reject permissions to distribute. Why do you think such rejections are for? If more popularity for the works would be useful, why would there be option to reject it? If you have a better reason for such a thing, please explain what it is...

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            • identicon
              Anonymous Coward, 8 Sep 2016 @ 7:58pm

              Re: Re: Re: Re: Re: Copyright...

              "Just some time ago there was news that some famous actor gets fan visits to his home from people who want selfies or some crap like that.. If it happens alot, it might become kinda annoying..."

              You... do realize that:

              1. The above has nothing to do with copyright law, and is part and parcel about being famous
              2. Even if copyright law permitted him to remove said movie from the market, it wouldn't stop fans from mobbing him

              ...Right?

              "If more popularity for the works would be useful, why would there be option to reject it?"

              If light is more useful than darkness, why would there be an option to turn the lights off? That's the angle you're going for?

              I'm merely reassured that now whenever the usual trolls trot out the statement that "None of our litigious expansions and amendments to the law would ever affect what you can do legally", I now have a shining example of copyright idiocy to demonstrate. Go ahead to the public, and scream that copyright permits the destruction of old things, even stuff consumers paid for. We'll see how many fans you win to your side.

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              • identicon
                tp, 8 Sep 2016 @ 8:47pm

                Re: Re: Re: Re: Re: Re: Copyright...

                > light is more useful than darkness, why would there be an option to turn the lights off?

                Well, it needs to be something significant enough that copyright infringement damages are at $300000...

                You need to think more carefully than just saving some energy with lightbulbs...

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                • icon
                  That One Guy (profile), 8 Sep 2016 @ 11:04pm

                  Re: Re: Re: Re: Re: Re: Re: Copyright...

                  Well, it needs to be something significant enough that copyright infringement damages are at $300000...

                  So two songs then?

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        • identicon
          Anonymous Coward, 9 Sep 2016 @ 6:51am

          Re: Re: Re: Copyright...

          I presume you have some proof of this? Business tips? Really?

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    • icon
      jameshogg (profile), 9 Sep 2016 @ 5:02am

      Re: Copyright...

      "The facts are uncontested: Copyright owners cannot reach all channels where the product could be available."

      Those facts most certainly are uncontested. And it is the very fact that copyright owners cannot possibly watch over every single inch of this planet that they will never be able to enforce copyright.

      There is a reason why dollars, pounds, euros, all the fiat currencies of the world do not have "MP3" as a legal tender. To do so would collapse that currency spectacularly fast. Nobody would be dumb enough at that point to say "well the system just needs to be enforced better". Nor would they say "well the fact that 75% of people still use the system honestly proves the system deserves credit for being effective and so we need to keep it going".

      Copyright is, like it or not, a privately owned fiat currency, without the luxury of on-hand police to watch over forgeries in quite the same way. You have a single party giving permission out to print something, excluding others, for the purpose of adding value to objects where there was none before. But there's a reason why the forgery rate of the pound is kept at about 3% - coins and notes are scarce enough naturally to make it work.

      But when it comes to copyright, ANY medium is a legal tender, ANY material construct of it is fair game including digital, which is why 25% of all internet traffic is pirated: it's an undisputed failure. Not even Ron Paul with his absurd theory of scrapping state fiat currency and replacing it with privately competing currencies would support this if it were presented to him as such. Libertarians do not call for a return to the "JPEG" standard or the ".TXT" standard for a reason. Both fiat advocates and gold standard advocates would agree that money made out of digital files wouldn't work no matter how much wish-thinking we had otherwise.

      Assurance contracts is how you protect the labour of artists. And is the only paywall which will work. Simultaneous payment from all customers set at a price the artist demands, and all the problems of property rights are solved with no copyright necessary. When millions pay their bills every month, they are participating in an assurance contract of simultaneous service. Same with tickets for gigs, same with pre-orders, same with reality-TV phone-voting, same with just about everything that involves a simultaneous pay-in or pay-out. It works, has been proven to work, and is the only way artists are going to have a say in their rights to be paid for work.

      It also means the golden luxury of knowing what you're going to be paid for your work. You know, just like any other employee with basic contract rights.

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      • identicon
        Anonymous Coward, 9 Sep 2016 @ 5:30am

        Re: Re: Copyright...

        You are ignoring the vast majority of creators who do it for fun, or altruistic reasons, and are often faced with a problem of fans demanding ways to pay them. The majority of works published on the Internet are published their for reasons other than directly raising money.
        The people who demand strong copyright protection, and or forced payment are dominantly the middlemen who have built a business that relied on them controlling what works were published, and so inflating the price they could demand for that work. Such people hate the openness of the Internet because it allows creators to go directly to their audience, bypassing their ability to manipulate the market to maximize their, (and not the creators), profits.

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        • icon
          jameshogg (profile), 9 Sep 2016 @ 5:55am

          Re: Re: Re: Copyright...

          "You are ignoring the vast majority of creators who do it for fun, or altruistic reasons, and are often faced with a problem of fans demanding ways to pay them. The majority of works published on the Internet are published their for reasons other than directly raising money."

          There is such a thing as anonymity, which is rather easy. Including that of aliases. Even further still, there is such a thing as anonymity with the ability to still prove you are that particular person on multiple platforms - my personal favourite is using the inverse of the RSA encryption algorithm to prove it's really you: clever use of very large prime numbers you see.

          "The people who demand strong copyright protection, and or forced payment are dominantly the middlemen who have built a business that relied on them controlling what works were published, and so inflating the price they could demand for that work. Such people hate the openness of the Internet because it allows creators to go directly to their audience, bypassing their ability to manipulate the market to maximize their, (and not the creators), profits."

          I like how you used the word "inflating"; it supports my copyright-as-dud-money metaphor. As Orwell liked to point out again and again, language is everything.

          I don't believe the internet eliminates middlemen. It may reduce their numbers, but it is still nonetheless a bridge of some kind between the buyer and seller, and so middlemen are bound to be there. In the internet's case it would be the ISPs, the search engines, advertisers etc.

          Even fans need to find a way to access the artist, which requires someone to help make the connection. That person is the one to remain vigilant towards, and even in my case of assurance contracts it would be the likes of Kickstarter and Patreon. For one thing they need to start refunding for failed projects, but the other big thing for the future is to watch that their % cuts are fair. Because we'll need to be ready for it.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 9 Sep 2016 @ 7:52am

            Re: Re: Re: Re: Copyright...

            There is such a thing as anonymity,

            Just because the creator does not want to be paid does not mean that the do not want recognition.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 9 Sep 2016 @ 8:02am

              Re: Re: Re: Re: Re: Copyright...

              In fact, recognition is just one of many non-monetary forms of payment that artists may gladly accept. One of the many problems with these discussions is the assumption that not only does an artist demand payment, they only want payment in the form of currency. Often, they do not, but that doesn't mean they want nothing from their work.

              reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 9 Sep 2016 @ 5:54am

        Re: Re: Copyright...

        Well, the argument about fiat currency is spectacularly silly. I know what you're trying to say, but it's as idiotic to suggest that currency would be based on a file format as it would be to say that it should be based on pints of cream.

        "why 25% of all internet traffic is pirated"

        Citation, please.

        "It also means the golden luxury of knowing what you're going to be paid for your work. You know, just like any other employee with basic contract rights"

        So, you're saying that no employee in any other field gets screwed over, denied payment for services, forced to give free labour without direct compensation, etc.? Because whenever you decide to work in the real world, you're in for a shock.

        reply to this | link to this | view in chronology ]

        • icon
          jameshogg (profile), 9 Sep 2016 @ 6:26am

          Re: Re: Re: Copyright...

          "Well, the argument about fiat currency is spectacularly silly. I know what you're trying to say, but it's as idiotic to suggest that currency would be based on a file format as it would be to say that it should be based on pints of cream."

          That's actually what copyright folk are trying to argue.

          In regards to internet pirate traffic it comes up as a regular figure over the years despite what people claim about "easy convenient paid services" reducing it:

          http://www.cnbc.com/id/41356625
          http://www.dailydot.com/business/nbcuniversal-comcast-piracy-study /
          https://gigaom.com/2011/01/31/419-piracy-nearly-a-quarter-of-global-internet-traffic-says-study/

          Cer tainly nowhere near as low as 3%. And that really should be "CitationS please" in the plural if we're really talking skepticism. I can provide more if needed, but that's the general picture found by most studies.

          This article shows distribution:

          https://torrentfreak.com/europe-has-the-highest-online-piracy-rates-by-far-160801/

          "So, you're saying that no employee in any other field gets screwed over, denied payment for services, forced to give free labour without direct compensation, etc.? Because whenever you decide to work in the real world, you're in for a shock."

          Actually all I said was that creators would actually have a chance to get to know what they'll be paid before they do their work akin to an employment contract - no more, no less.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 9 Sep 2016 @ 6:48am

            Re: Re: Re: Re: Copyright...

            "That's actually what copyright folk are trying to argue"

            Are they? I don't think I've ever heard an argument about an MP3 file being used as currency except your comment here.

            "In regards to internet pirate traffic it comes up as a regular figure over the years"

            Yes, "over the years". 2 of your links are from 2011 (referencing the same survey, by the way), one from 2013. That's horribly outdated and doesn't consider the massive amount of extra traffic generated by Netflix and the like. In 2011, Netflix wasn't even streaming outside of North America yet, let alone have its impact seen on global piracy rates. That's even before we stop to consider the sources - all the articles are based upon studies from a single provider, who made them for NBC, who have a vested interest in piracy appearing not to be reduced by its competitors offering quality legal services.

            Do you have any more recent figures, more reliable ones or at least studies from different groups? I'm guessing they show a reduction since 2011.

            "despite what people claim about "easy convenient paid services" reducing it:"

            It is being reduced. Not as quickly as it should be, but that's got more to do with corporations refusing to offer the legal services across large swathes of the globe than the fact that legal services reduce piracy being wrong. If you're considering global internet traffic, you have to consider that the legal services offered are completely different across the globe and that lack of choice reduces their impact.

            "Actually all I said was that creators would actually have a chance to get to know what they'll be paid before they do their work akin to an employment contract - no more, no less."

            Not really. They'll get an idea, but it's still subject to demand. Same with your other examples - if gigs fail to sell most of their tickets, people don't preorder according to expectations, people don't bother calling a phone line, etc. That happens, they don't get the expected income. Same as anyone working for a commission basis rather than a fixed salary - it can get them more money, but also get them much less. Despite this, I doubt they would accept a fixed up front salary.

            reply to this | link to this | view in chronology ]

  • identicon
    JD, 8 Sep 2016 @ 3:31pm

    European tech economy

    With a legal framework like this around fundamental internet technology, I, too, am at a loss as to why Europe isn't a blooming flowerbed of tech startups.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 3:50pm

    >All this is fundamentally commercial activity.

    Ah yes, the Marxist ideologue strikes again.

    The libertarian ideology says that all this is fundamentally _intellectual_ activity, and it's a freedom-of-thought issue. And that's the most important freedom that sentient creatures have.

    It sort of depends on who you're looking at, and whose activity you want to support. If you're interested in creative activity, the artists and writers and performers, you see the libertarian model matching reality. If, on the other hand, you're interested in guildmasters and talent agents and promoters and advertisers and corporate executives (yes, and censors and propagandists), you'll have to fit the reality into either economic or military/violent forms. Having excluded mass violence, economics in the only remaining choice.

    My personal experience of creativity--whether writing books, publishing magazines, performing music and drama, or creating sculpture--is that ALL the people I know (or know about) do ALL these things for exclusively noncommercial reasons. Which makes the assertion "it's all commercial activity" obviously nonsense.

    But to step back a bit. A valid analysis must distinguish between _activity_ and _motive_. The _activity_ is intellectual. The _motive_ may be commercial (in which case we really shouldn't care whether it succeeds or not--but we may pay for it, or save our money), religious (in which case we may judge it harmful/heretical, or not), social (and we may give or withhold praise according to whether we believe the public was well served), academic (and we take the course, or major in something else). But most of all, the activity may induce a like intellectual activity in someone else--and this is where the "freedom of thought" folk and the "Marxist thought police" don't even agree to disagree.

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 8 Sep 2016 @ 3:57pm

    You can hear the arm waving from here...

    The EU courts are, if nothing else, ballsy in their willingness to stand up against technology that has benefits and incredible harm.

    I think the courts get it right by starting not in the middle of technology (workings of a hyperlink), but rather with the much more basic concepts of artist rights. No technology required to explain those rights, they are basic and fundamental.

    After that, the court also does something that US courts have been loath to do, accepting the basic concept that a website is a complete publication regardless of where the content is located. So if you have a site called "download free hollywood movies" and you provide links to 1000 files of pirated material on someone else's servers, you should still be liable because your website as a whole functions as pirate site. Making the product available (by linking to it and making it possible for poeple to obtain it via your website) should be considered piracy in and of itself, the intent is there.

    Swept up in this of course will be the search engines. To comply with this ruling, Google (and others) will have no choice but to work from red flag knowledge. No longer will they be able to keep a site with 100,000 or more valid DMCA notices against it in their results. They will clearly have to avoid that sort of situation.

    My feeling is that this will lead to a sort of net-split. The real world will be cleaner and more legal, but it will drive many to hide in the (ominous music please) dark web. But that will have accomplished what copyright holders have always pushed for, driving piracy out of the mainstream and into the dark corners of the world.

    Oh, yeah, Youtube is fucked. :)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2016 @ 12:46am

      Re: You can hear the arm waving from here...

      What you want is for Google to somehow decide whether a site is infringing or not, and whether or not a DMCA request is valid. Where is the Information that they can use to do that, do they use a crystal ball?

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 9 Sep 2016 @ 1:04am

      Re: You can hear the arm waving from here...

      "The EU courts are, if nothing else, ballsy in their willingness to stand up against technology that has benefits and incredible harm."

      Yeah, you have to be ballsy to stand up to all those benefits. Also, incredible harm from links has yet to be proven (piracy happens without linking!) but it's undeniable that the internet only grew to what it is because people could freely link material. This move is demonstrably more harmful than any linking ever has been.

      "rather with the much more basic concepts of artist rights"

      What about the rights of everyone else?

      But, the idiocy of your comment is pretty typical. You're not bothered by the realities of technology, how things actually work, and how bad this will be for people trying to stay on the right side of the law - and, yes, this includes artists. You're only bothered about feelings and the rights on one set of people.

      "So if you have a site called "download free hollywood movies" and you provide links to 1000 files of pirated material on someone else's servers, you should still be liable because your website as a whole functions as pirate site"

      ...and the normal moronic tactic - pick an obviously indefensible example and pretend that this is the only one affected. What about the thousands of other possibilities, from people linking to legal content only for the link to later change to something infringing, to new aggregators who send huge amounts of traffic to those poor artists you pretend to defend, but might accidentally allow an infringing link among the tens of thousands a day they host?

      The reality is too hard for you to argue, so you pick a neat fantasy or extreme example to avoid discussing how this actually affects people.

      "My feeling is that this will lead to a sort of net-split"

      Reality, as ever, differs greatly from your feelings.

      "Oh, yeah, Youtube is fucked. :)"

      So, record labels, independent producers and artists who want their stuff on there get screwed, everyone from short film producers using it for exposure to engaged fans increasing sales of their favourite products? Millions of independent producers get screwed over. Yeah, fantastic.

      reply to this | link to this | view in chronology ]

    • icon
      Narcissus (profile), 9 Sep 2016 @ 1:12am

      Re: You can hear the arm waving from here...

      "So if you have a site called "download free hollywood movies" and you provide links to 1000 files of pirated material on someone else's servers, you should still be liable because your website as a whole functions as pirate site."

      But that's not what this ruling says. If you don't put ads on the site and make no money of it, you're perfectly fine it seems.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 9 Sep 2016 @ 1:20am

        Re: Re: You can hear the arm waving from here...

        ...meaning that the pirate site will be fine but the aggregator that essentially advertises the movies for the studios might be shut down because a couple of infringing links made it through their screening process. His intellect is as astounding as ever.

        reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 9 Sep 2016 @ 6:32am

        Re: Re: You can hear the arm waving from here...

        "But that's not what this ruling says. If you don't put ads on the site and make no money of it, you're perfectly fine it seems."

        Not really. There is always some sort of benefit, even if it's indirect. Running a big pirate site (even an index) takes a heck of a lot of bandwidth, time, and effort. Most people cannot afford to keep paying that out of their pockets forever. They accept donations, they charge a membership fee, or they have links off to their commercials sites. Something as simple as linking to images stored on an image revenue style site could be considered commercial. It's pretty much impossible not to be commercial.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 9 Sep 2016 @ 6:51am

          Re: Re: Re: You can hear the arm waving from here...

          "It's pretty much impossible not to be commercial."

          So, you're saying that you agree with Mike's assessment that this is a bad ruling that will affect those who don't make money from infringement, despite claims that it won't?

          reply to this | link to this | view in chronology ]

          • icon
            Whatever (profile), 10 Sep 2016 @ 1:53pm

            Re: Re: Re: Re: You can hear the arm waving from here...

            The problem Paul is that somewhere along the chain, someone almost always makes money from it. The current system of pirate sites, file hosters, and the like all have their potential for commercial exploitation. If you cannot control the entire process (ie, I share via FTP with you, my personal friend, with no middle man involved) then you are likely involved in a commercial transaction.

            I don't agree with Mike though - piracy will continue and will be strong, there will just be less desire to make millions of dollars off of it (sorry to KAT, Kimdotcom, and those types)

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Sep 2016 @ 1:28am

              Re: Re: Re: Re: Re: You can hear the arm waving from here...

              Will continue and will be strong? So you're going to keep chasing after grandparents for chump change? Comforting to know.

              reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 22 Sep 2016 @ 2:05am

              Re: Re: Re: Re: Re: You can hear the arm waving from here...

              "The problem Paul is that somewhere along the chain, someone almost always makes money from it."

              Oh, I missed this idiocy, apologies.

              Yes, indeed, people who run pirate sites will make something, even if it's just to cover costs. But, that isn't the point.

              The point is that putting such a low bar on whether something is "commercial" removes protections for people who are genuinely not making any money from infringement - most notably those who make a majority of income from legal activity, or who indeed make no income at all.

              I know you love to play ignorant and ignore all the actual issues being discussed in favour of windmills to tilt at, but it's all the sillier when you pretend to object to things you're actually agreeing with.

              "(sorry to KAT, Kimdotcom, and those types)"

              The types who have yet to receive fair due process and their day in a neutral court? Funny that you use those examples, in light of the concerns of due process and fairness being removed by this ruling.

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2016 @ 2:57am

      Re: You can hear the arm waving from here...

      You're right. Google should have taken down Warner Bros.' website based on the requests of Warner Bros.' accusations of piracy and left it that way.

      reply to this | link to this | view in chronology ]

    • icon
      Wyrm (profile), 9 Sep 2016 @ 12:21pm

      Re: You can hear the arm waving from here...

      "I think the courts get it right by starting not in the middle of technology (workings of a hyperlink),..."

      Yes, let's just ignore reality and judge based on your own preconceived notions. So much simpler than actually trying to understand the whole situation. And the consequences of a bad judgment.

      reply to this | link to this | view in chronology ]

  • icon
    surfer (profile), 8 Sep 2016 @ 7:45pm

    ahem

    lets try this...

    All the Way 2016

    secondary criminal infringement link liability in the UK. Is there even such a thing?

    "I fart in your general direction"
    -Monty Python, The Holy Grail

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 7:46pm

    And the EU wonders why tech companies don't want to operate in the EU?

    reply to this | link to this | view in chronology ]

  • icon
    Lord Lidl of Cheem (profile), 9 Sep 2016 @ 2:16am

    Nearly there EU, just one more level (linking to links) and you can finally get that Google!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2016 @ 4:30am

    *I have not read all of the comments, so sorry if it's a duplication*

    Step 1: Make a website with valuable non-infringing content
    Step 2: Get lots of people to link to me
    Step 3: Change the website to now be infringing (because we've never seen people or companies make mistakes with this)
    Step 4: Watch many people get fined over a mistake (or malice if you did it with intent)

    I can see no way this ruling could go wrong.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 9 Sep 2016 @ 5:27am

      Re:

      You've definitely pointed out the biggest problem not mentioned in the article - links are not fixed. What they link to can easily change after the link is created. This fact alone should remove liability from the person making the link, even if you accept the stupidity of a link being infringing.

      reply to this | link to this | view in chronology ]

      • identicon
        Chris Brand, 9 Sep 2016 @ 9:29am

        Re: Re:

        "links are not fixed. What they link to can easily change after the link is created"

        Exactly. I find it incredible that this doesn't seem to get brought up in these cases. The real-world equivalent would be "Go to this address, third door on the left, bookshelf on the right. Top shelf. Fourth book from the left" - sure, I may know what book that was when I gave you the instructions but unless I'm in control of the bookshelf (website) I'm directing you to, I obviously don't know what book you'll find when you follow those directions...

        reply to this | link to this | view in chronology ]

  • identicon
    tp, 9 Sep 2016 @ 6:57am

    > The majority of works published on the Internet are published their for reasons other than directly raising money."

    That might be because transferring money in internet is kinda annoying, and usually requires that the author can process credit card numbers. But it's a problem rather than a solution.

    > The people who demand strong copyright protection, and or forced payment are dominantly the middlemen who have built a business that relied on them controlling what works were published

    There are also group called "authors", who invested their time to the activity of creating the products you like to use. Their investment allows them to choose who/where and under what conditions the end result can be displayed/performed/distributed. The ability to choose who is worthy of the benefits of the product. These people are also for strong copyright protections.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2016 @ 7:53pm

      Re:

      Perhaps, but if you make a conscious decision not to make a product available, how is it reasonable to blame consumers in that region for not giving you any money for it?

      It's the same level of intelligence as placing yourself in the middle of a freeway, then blaming every motorist in the country - regardless of whether they've driven on that freeway - of potentially injuring you in an accident.

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 12 Sep 2016 @ 6:06am

      Re:

      There are also group called "authors", who invested their time to the activity of creating the products you like to use. Their investment allows them to choose who/where and under what conditions the end result can be displayed/performed/distributed. The ability to choose who is worthy of the benefits of the product. These people are also for strong copyright protections.

      No, no, no!

      Investment =/= the right to control the item invested in from top to bottom whether it originated from an individual or from a group.

      That these people are for strong copyright "protections" is due to the fact that they believe it confers the ability to control the upstream and downstream distribution of their output. It always amuses me to imagine the horrified expressions on their faces should they pop into Poundland one day and find their magnum opus on sale one day in a 2-for-1 bundle. I have yet to hear of the mewlings of a disenchanted author getting their books off the shelves of any shop selling them for less than the RRP.

      You're deluded. Let go. You can't control jack, nor will you ever be able to.

      The market will decide the value of your output and of your investment. Accept that and move on.

      reply to this | link to this | view in chronology ]

  • icon
    LAB (profile), 16 Sep 2016 @ 8:31am

    Sooo...

    A magazine takes photos they are going to publish. Someone leaks the photos to a site before publication. The magazine paid the photographer, the model, the set staff, location costs, etc. The magazine notifies the site they are linking to infringing material. The site ignores the notification, actually mocking the magazine. The magazine gets the photos taken down from one of the places the photos are hosted. The site knowingly and purposely links to the photos again and again from other hosts. The magazine sues the site for infringement and you don't think this is copyright infringement? Because it's a link? The site is making money by linking to the known infringing material over and over and you don't think that should be a factor for liability? Viewing this ruling in the context of the case,I don't understand your logic.

    reply to this | link to this | view in chronology ]


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