Top EU Court's Advocate General Says German Link Tax Should Not Be Applied -- But On A Technicality

from the nice,-but-it-won't-stop-article-11 dept

As numerous Techdirt posts have explained, there are two really problematic areas with the EU's proposed copyright directive. Article 13, which will require pretty much every major online site to filter uploaded content, and Article 11, the so-called "link tax", more formally known as an "ancillary copyright". It's yet another example of the copyright ratchet -- the fact that laws governing copyright only ever get stronger, in favor of the industry, never in the other direction, in favor of the public. We know for sure that Article 11 will be a disaster because it's already been tried twice -- in Germany and Spain -- and failed both times.

Despite that fact, the German and Spanish laws are still on the law books in their respective countries. VG Media, the German collective management organization handling copyright on behalf of press publishers and others lost no time in bringing a case against Google. It alleged that the US Internet company had used text excerpts, images and videos from press and media material produced by VG Media's members without paying a fee.

Alongside the issue of whether Google did indeed infringe on the new law, there is another consideration arising out of some fairly obscure EU legislation. If the new German ancillary copyright law is "a technical regulation specifically aimed at a particular information society service", then it would require prior notification to the European Commission in order to be applicable. The German court considering VG Media's case asked the Court of Justice of the European Union, (CJEU), the EU's top court, to decide whether or not the link tax law is indeed a "technical regulation" of that kind. As is usual for CJEU cases, one of the court's Advocates General has offered a preliminary opinion before the main ruling is handed down (pdf). It concludes:

the Court should rule that national provisions such as those at issue, which prohibit only commercial operators of search engines and commercial service providers which edit content, but not other users, including commercial users, from making press products or parts thereof (excluding individual words and very short text excerpts) available to the public constitute rules specifically aimed at information society services. Further, national provisions such as those at issue constitute a technical regulation, subject to the notification obligation under that Directive.

It follows therefore, that in the absence of notification of these national provisions to the [European] Commission, these new German copyright rules cannot be applied by the German courts.

Although that sounds great, there are two caveats. One is that the CJEU is not obliged to follow the Advocate General's reasoning, although it often does. This means that it is quite likely that the top EU court will rule that Germany's link tax cannot be applied, and thus that Google has not infringed on any snippets produced by VG Media's members. The more important caveat is that even if the CJEU does take that view, it won't affect Article 11, which is EU, not national, legislation, and not finalized yet. So we are still facing the dire prospect of an EU-wide ancillary copyright that not only won't work, but also is something that many publishers don't even want.

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  • identicon
    Anonymous Coward, 14 Dec 2018 @ 3:47am

    The DMCA was a weakening of copyright law, in that it gave immunity for conduct which is not immune in the offline world.

    When a credit-card processor can be held not to be contributing to infringement, like in the Perfect10 case (even if they knew the product was infringing, they were not liable, since the infringer could just find another way to get paid), that's not exactly a strong protection scheme.

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

    • identicon
      Rocky, 14 Dec 2018 @ 4:42am

      Re:

      > The DMCA was a weakening of copyright law, in that it gave immunity for conduct which is not immune in the offline world.
      >
      > When a credit-card processor can be held not to be contributing to infringement, like in the Perfect10 case (even if they knew the product was infringing, they were not liable, since the infringer could just find another way to get paid), that's not exactly a strong protection scheme.

      Not at all, you are barking up the wrong tree here. If what you are saying is true the post office for example or any other physical goods service would be liable for handling directly or indirectly infringing items. I've yet to see any of those services being sued.

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

      • icon
        ShadowNinja (profile), 14 Dec 2018 @ 6:34am

        Re: Re:

        Well we've got to start somewhere. Might as well start with automobile manufacturers. I hear lots of criminals smuggle illegal goods with them. I also hear that terrorists use automobiles, they should be doing more to prevent terrorists from buying and using their products!

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

    • identicon
      Anonymous Coward, 14 Dec 2018 @ 5:14am

      Re:

      And even after Perfect 10 lost they got away with not having to pay loser's fees by transferring all assets to Norman Zada and declaring bankruptcy.

      If Perfect 10 is your best example of an honest porn producer getting gypped by pirates... keep looking. Perfect 10's losses codified many anti-troll defenses.

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

    • identicon
      unindicted co-commenter, 14 Dec 2018 @ 8:12am

      Re:

      iirc, the case to which you refer (perfect10) was about copyright claims on thumbnail photos used in a website to link the hosting website. Amirite?

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

    • icon
      PaulT (profile), 14 Dec 2018 @ 8:20am

      Re:

      "The DMCA was a weakening of copyright law, in that it gave immunity for conduct which is not immune in the offline world."

      No, it just clarified that you have to go after the person who committed the crime rather than whoever made the tools used. If someone delivers a stolen package in the mail, you don't go after the mail service for stealing it, even if the mailman was in on the scheme. You can get them for the crimes they did commit, but you don't get to attack them for what they didn't do just because it's easier. Same online with section 230.

      Why do you wish people to be prosecuted for crimes they did not commit?

      "When a credit-card processor can be held not to be contributing to infringement, like in the Perfect10 case (even if they knew the product was infringing, they were not liable, since the infringer could just find another way to get paid)"

      I'm pretty sure that's not what the case concluded, but even if they were guilty of conspiracy or money laundering, they would be guilty of those crimes. They would not be guilty of the original theft. But, you want online platforms to be held liable for the crimes they did not commit, and don't see how stupid this is.

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

      • identicon
        Anonymous Coward, 15 Dec 2018 @ 6:50am

        Re: Re:

        "Why do you wish people to be prosecuted for crimes they did not commit?"

        Very good question but I doubt an answer will be provided. It could be that they are just too lazy to do their jobs or maybe they enjoy harassing others, idk but it does make them look silly.

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

    • identicon
      Anonymous Coward, 14 Dec 2018 @ 2:09pm

      Re: Copyrights best and brightest on display here.

      Your best example is prefect 10?



      Let me laugh even harder!

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

  • identicon
    Anonymous Coward, 14 Dec 2018 @ 6:16am

    Abolish Copyright

    It will only get worse.

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

  • identicon
    Anonymous Coward, 14 Dec 2018 @ 8:39am

    Death by a thousand cuts. One here, one there and over there.
    Does not matter how many and how ridiculous each cut is it limits Silicon Valley ability to control world thought.

    If Silicon Valley does not wise up quick it is going to wake up one morning and find that its idiocy control does not extend outside the state of California.

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

  • icon
    ECA (profile), 14 Dec 2018 @ 3:32pm

    Im waiting..

    For someone to declare the internet to be considered its OWN independent nation..
    With its own rules and regulations..

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

  • icon
    That One Guy (profile), 14 Dec 2018 @ 6:44pm

    Keep chipping away at that bridge you're on

    How greedy do you have to be to try to shake down a company, find out what happens whey they refuse such that you're left begging them to let you back on their platform, only to double-down and try it again?

    Even if they win this there's really only out outcome: A single payout followed by immediate removal of any and all links to their sites, tanking traffic overnight.

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


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