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.

Filed Under: cjeu, commercial use, eu, germany, knowledge, liability, linking

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  1. identicon
    RespectThatItsNotTheUS, 19 Dec 2016 @ 12:05pm

    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.

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