Why are we still struggling with hyper-linking and copyright law?

This is a hyper Link

Back in the 90s, copyright law was concerned about the issue of linking to content, in some quarters it was considered that linking to content required some sort of permission because it would be an act similar to that of making the work available to the public. In early cases, such as Shetland Times Ltd. v. Wills courts struggled with the concept of hyper-linking, even granting injunctions in some instances. At some point it was finally understood that linking was a vital technical function of the Internet, and for the most part linking to content was left alone.

Fast-forward a few years, and we start seeing further attempts to make linking to content more difficult in some circumstances. The idea is that an author has some exclusive rights under copyright, and offering a work to users via a link should be an exclusive right of the owner as well. We’ve had a few cases in the Court of Justice of the European Union looking precisely at this question. In Svensson, a  group of journalists sued a commercial indexing service providing its clients with links to articles published by other websites. The CJEU erred on the side of the indexing service by establishing that if the content had already been communicated to the public to the author, and the link was not directed to a new public, then there would not be infringement. This principle was re-visited and upheld in other cases such as C More, until the case of GS Media complicated interpretation a bit.

GS Media operates a website called GeenStijl, which provides light-hearted news and content in Dutch; in 2011 GeenStijl published links to pictures that belonged to Playboy, but they were hosted in a cloud file storage service in Australia. Sanoma Media (the Playboy publisher in the Netherlands and other northern European countries), tired to get the links removed, but GS Media failed to comply. Sanoma sued for copyright infringement and the case eventually made it all the way to the CJEU with the question of whether linking to infringing material could be considered as copyright infringement. The question was referred because in Svensson the principle is to communicate the work to a new public, which is precisely what is happening here. The Court decided to retain Svensson, but added a strange new caveat. Whenever a site links to a work that has been posted elsewhere without the owner’s permission, this will be a communication to the public (and therefore infringing) if the work is being published for profit and the author knows, or has reason to know, that it is infringing copyright. This creates a new commercial and constructive knowledge element to hyper-linking.

Thankfully, GS Media has not destroyed the Internet as we know it, mostly because it seems to set the bar quite high on what could be considered infringement, the knowledge element in particular is difficult to meet unless there is evidence that the person linking has been made aware of such actions.

Now we have a case from the United States that are shedding more light on the issue of linking, and it is Playboy v Happy Mutants. If you read this blog you will definitely be familiar the wonderful Boing Boing blog; in 2016 the blog published an article linking to a collection of Playboy centrefolds hosted in popular image hosting site Imgur (since then the images have been removed). Xeni Jardin, who published the link, was correctly pointing out what an interesting resource it was, as it was “kind of of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.” Playboy didn’t agree with this interpretation, and sued Happy Mutants (the blog publishing company) for secondary copyright infringement under the inducement doctrine (of Grokster fame).

The judge in sided with Boing Boing granting a motion to dismiss the case. In the decision, the judge opined that it was unlikely that Playboy would be successful as it was difficult to see how linking to a third party site hosting content would get around the very strong protection to freedom of speech prevalent in the US. The judge cites another recent linking US case, that of Tarantino v Gawker Media, in which Quentin Tarantino had sued Gawker because one of its publications had linked to a leaked movie script for “The Hateful Eight”. That case had been dismissed, and the judge cited this passage:

“An allegation that a defendant merely provided the means to accomplish an infringing activity is insufficient to establish a claim for copyright infringement. Rather, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.”

It is encouraging that courts are unwilling to extend too much protection to copyright owners when it comes to hyper-linking. Any case that would eventually erode the freedom to link to content would seriously affect the way in which the Internet operates, and hopefully we will continue to see that principle upheld.

Worryingly though, a New York Federal judge has decided that embedding a tweet into an article could be copyright infringement. A worrying and disturbing decision, but hopefully just a one-off, or it might be down to a quirk of US law. In Europe we do not have such thing as an “exclusive display right”, unless the judge is using a new term to talk about communication to the public. I will be happy to hear from US lawyers about this.

Leave a Reply