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
    Anonymous Coward, 19 Dec 2016 @ 3:58pm

    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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