by Mike Masnick
Wed, Jan 29th 2014 12:02pm
by Mike Masnick
Tue, Nov 26th 2013 9:52am
Goldieblox May Be Right About Fair Use, But Wrong About Claiming You Need A License To Link To Its Site
from the hypocrites dept
LINKS BY YOU TO THE WEBSITE. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to GoldieBlox, (b) the links and the content on your website do not suggest any affiliation with GoldieBlox or cause any other confusion, and (c) the links and the content on your website do not portray GoldieBlox or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to GoldieBlox. GoldieBlox reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.Except, there's no legal basis for this whatsoever. I can link to them here, as I have, and say things that they disagree with, and they can scream and holler about them "revoking" their license to link and it would mean absolutely nothing. Because just as you don't need a license to create a parody song, you don't need a license to link to someone's website.
Overly demanding a license or permission for things is a big problem. Goldieblox should be supported for making it clear you don't need a license for parody, but it should be called out for pretending a license is needed for linking.
by Mike Masnick
Tue, Feb 19th 2013 3:16am
from the good-for-them dept
Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic “transmission” of the work, or placing the work into an electronic network or system from which it can be accessed.Basically, since a hyperlink just points you somewhere it's not transmitting the work, there's no copyright violation. The paper goes into significantly more detail, citing case law around the globe to support its position. It also warns the court that while this may seem like a simple issue, it's vitally important to the health of the internet:
This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):“Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.
Hyperlinks ... share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”
The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case.Also of note, is that the opinion paper says that the same reasoning applies equally to "framing." This is a bit more controversial, but we've always pointed out that embedding and framing are no different than linking, since they're merely pointing a computer from where to pull information, and the EU Copyright Society agrees:
In principle, we are unable to see why “framing” as it is often called, should be treated any differently for copyright purposes from hyperlinking.They do say that framing may give rise to other forms of liability, including unfair competition or moral rights, but that is separate from the copyright question before the court.
In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.
Considering how much pushback there has been recently in terms of companies arguing that links are infringing, this is nice to see. Here in the US, there's a similar case going on between the Associated Press and clipping service Meltwater. Hopefully common sense wins the day in both cases, and mere linking or framing is not seen as copyright infringement.
by Mike Masnick
Wed, Jan 23rd 2013 1:23pm
from the plus,-google-should-fix-its-seo dept
It was then interesting to see The Verge's Editor-in-Chief, Joshua Topolsky, take to Twitter to demand that Huffington Post remove a snippet and link to that story.
In response Topolsky explained more that his problem with it was that it hurt The Verge's SEO (search engine optimization) on such stories.
@joshuatopolsky that was a story we linked out to on huffpost to drive traffic/readers to The Verge, which it looks like it did 1/2— Bianca Bosker (@bbosker) January 23, 2013
What's most egregious about this @huffingtonpost scrape is its theft of our SEO on title and text. Google "death of the american arcade"— Joshua Topolsky (@joshuatopolsky) January 23, 2013
In the meantime, though, having discovered in the past just how much traffic a link from HuffPo can drive, we'd like to offer up Techdirt as a site that HuffPo can freely link to whenever they want. We won't complain to them. Though, if Google ranks them higher in search, we might complain to Google...
by Mike Masnick
Thu, Dec 27th 2012 10:55am
from the odd-choices dept
Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.
‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.
by Mike Masnick
Wed, Nov 28th 2012 3:26am
from the dumb-proposals dept
The final proposal would be wide reaching in impact, and make it ridiculous to run a search engine or any kind of aggregator in Germany:
The new section, if introduced, would provide the "producer of news materials" the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes," according to an unofficial translation of the German Government's proposals.The German government is set to take up the issue on Thursday and Google has realized that maybe it should let folks in Germany know that this proposal would seriously cut into their internet services. As Google accurately notes, if the law passes it will mean "higher costs, less information and massive legal uncertainty." That's what happens when you insist that content providers who fail to monetize traffic somehow "deserve" money from a third party that is helping people find them.
Others would be permitted to provide "public access" to the publishers' material unless those providing that access are "commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion". News publishers' right to control the commercial exploitation of their work in this regard would extend for a year after publication. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".
The logic behind this bill makes no sense. Do we require that GPS service providers pay stores for directing people to where they're located? Of course not. The very concept is ludicrous. Yet that's exactly what this bill is doing in Germany.
Most ridiculous of all: if publishers don't like being in Google's results, they can already opt-out. So if this was really "piracy" as the publishers claim, they have a solution already at their disposal. But this isn't about piracy at all, of course. It's about publishers who haven't been able to adapt seeing Google make lots of money and getting jealous. So they're demanding a cut of the money. It's a sad statement on the nature of both publishers and German copyright law that this proposal is even being seriously considered.
by Mike Masnick
Fri, Sep 14th 2012 7:59am
from the seems-a-bit-extreme dept
A Dutch television presenter, Britt Dekker, did a nude photoshoot for Playboy, and a bunch of the images leaked ahead of the December, 2011 release of the magazine. A website called GeenStijl.nl had a story about it, and included a link to a zip file that contained all the images that had been uploaded to the cyberlocker FileFactory.com. Playboy had the file taken down from FileFactory, and GeenStijl linked again to the same images on Imageshack. And from there a game of whac-a-mole followed with Playboy having the images taken down, but the images quickly spread all over the place. For what it's worth, at the time, there was a lot of speculation that Playboy itself had leaked the images to build up buzz.
Either way, GeenStijl got sued for copyright infringement -- and they responded by pointing out that they just linked to the content. The court put forth a three pronged test, and found that GeenStijl, even with just links, met the criteria for infringement. As explained on the FutureOfCopyright site (linked above):
The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.By my reading, all three of the prongs of the test, as presented here, are somewhat problematic. The reasoning on the first prong -- intervention -- just doesn't seem right. The claim that "the public wouldn't have had access" but for the link on GeenStijl isn't true. They did have access since the files were already on the cyberlocker. GeenStijl perhaps made it a lot more widely known, but at this point you're arguing about whether or not it's legal to make a factual statement. Did the photos exist on a cyberlocker? Yes. Saying so shouldn't be infringing.
- Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.
- New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.
- Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.
The second prong really just seems like a repeat of the first prong. The entire argument that seems to have convinced the court is that GeenStijl was the first to link to the content. Under US law you face much more liability for leaking "pre-release" material, so you could argue that this is a similar situation in the Netherlands, but again, it's not GeenStijl "leaking" the material. They're acting as a journalist, telling people such content exists.
The final prong is completely useless. Basically it seems to say that because the article was popular, that's evidence for infringement. I can't see how that makes any sense at all. If GeenStijl was, for example, selling access to the images, then there's a much stronger argument of "profit." But just saying that because the site got a lot of traffic, they profited seems like a dangerous precedent.
The Future of Copyright article mentions the cases against FTD as being similar, but I'm not sure that's true. While a lower court had found FTD guilty for linking, on appeal it was said that links weren't the problem, it was the promoting of uploads that got FTD in trouble.
Either way, it's of little surprise that Tim Kuik, the head of the Dutch anti-piracy group BREIN, is cheering on this ruling, suggesting that this case will be useful in other efforts to go after sites that link to infringing content. Of course, given the specific nature of the ruling, including how much of it seemed to rely on the fact that GeenStijl was the first to somehow create an audience for these images, I do wonder if it really has that much value for BREIN in those types of cases. Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific.
It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications. But the highly specific details associated with the ruling, especially the reliance on being the first to publish the link, at least suggests that this has limited value as a wider precedent.
by Mike Masnick
Tue, Aug 21st 2012 5:11am
from the quick,-look-over-there! dept
The latest thing, though, seems particularly silly. At a conference, the company's Chief Legal Officer, Daniel Raimer, appears to be throwing links sites under the bus by claiming that they're the real problem, and storage sites shouldn't be lumped in with linking sites.
The thing is, both kinds of sites have both legal and illegal purposes, and it's silly and counterproductive for one kind to blame the other kind. Storage sites have perfectly reasonable uses, and RapidShare has been bending over backwards to be a good player in that space. But a user-generated site that includes links to content also can have perfectly legitimate and legal uses, and it seems particularly silly to assume otherwise. From a legal standpoint, both kinds of sites should have reasonable protections against infringement (though that doesn't always appear to be true once things get to court). But, even then, storage sites probably even have less of a reasonable claim under copyright law, because actual copies (reproduction rights) and distribution could potentially be attributed to them (though, clearly, they have reasonable claims of safe harbors). With links sites, they neither store nor transmit the content, and it's difficult to see how they infringe on any of the key rights associated with copyright, even outside of the basic safe harbors.
by Mike Masnick
Tue, Aug 14th 2012 8:24pm
from the time-for-a-wake-up-call dept
by Leigh Beadon
Tue, Jun 26th 2012 3:06pm
from the fair-dealing dept
Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:
While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.
Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.
On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:
The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.
To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.
All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.