European court says linking to illegal content is copyright infringement(searchengineland.com)
searchengineland.com
European court says linking to illegal content is copyright infringement
http://searchengineland.com/european-court-says-linking-illegal-content-copyright-infringement-258442
183 comments
How do you prove #2?
When I go to Best Buy I just assume they have licenses to all the movies they are selling.
For copyright infringement, distinct from theft,it has never been the burden of the consumer to know who has a license to distribute.
When I go to Best Buy I just assume they have licenses to all the movies they are selling.
For copyright infringement, distinct from theft,it has never been the burden of the consumer to know who has a license to distribute.
So....no search engines?
Europe really doesn't like Google.
Europe really doesn't like Google.
Are 1 and 2 `AND` or `OR`?
> Did you really think you could create links to illegal content for money and get away with it?
Yes, and that's a horrible ruling. Almost everything can be construed as "for money". Are you a newspaper with paid subscribers? Everything you link is "for money". Do you have a Google ad on your hobby blog? Technically, you're getting paid for it. Someone will make the argument that you're driving traffic to your ad-sponsored blog by linking to infringing content, so obvious you're profiting from piracy.
It's also ludicrous to pretend that the linker is guilty of the crime. If I link to Silk Road and you go there to buy drugs, I am not involved in the transaction. I didn't buy drugs. I didn't sell drugs. I had nothing to do with you ordering drugs other than telling you where they were.
Google links to things that are illegal all over the place. Should they be guilty of linking to Muhammad cartoons because that's taboo in certain countries? Of course not, even if they get paid for it.
Yes, and that's a horrible ruling. Almost everything can be construed as "for money". Are you a newspaper with paid subscribers? Everything you link is "for money". Do you have a Google ad on your hobby blog? Technically, you're getting paid for it. Someone will make the argument that you're driving traffic to your ad-sponsored blog by linking to infringing content, so obvious you're profiting from piracy.
It's also ludicrous to pretend that the linker is guilty of the crime. If I link to Silk Road and you go there to buy drugs, I am not involved in the transaction. I didn't buy drugs. I didn't sell drugs. I had nothing to do with you ordering drugs other than telling you where they were.
Google links to things that are illegal all over the place. Should they be guilty of linking to Muhammad cartoons because that's taboo in certain countries? Of course not, even if they get paid for it.
> Everything you link is "for money". Do you have a Google ad on your hobby blog? Technically, you're getting paid for it.
So why do people have Google ads on their hobby blogs? Could it be that it's actually for money, not just "for money"? If it's not for money, why even bother running ads? Sounds to me like a pretty good indicator of intention.
So why do people have Google ads on their hobby blogs? Could it be that it's actually for money, not just "for money"? If it's not for money, why even bother running ads? Sounds to me like a pretty good indicator of intention.
I use ads on my hobby site to pay for my hobby site. I make like $10 a year off of it.
I run ads because I'd rather not pay out of pocket but I hardly consider it as something that makes me money for the sake of making money.
I run ads because I'd rather not pay out of pocket but I hardly consider it as something that makes me money for the sake of making money.
When you have ads on your hobby site, do you ever stop to think about how your content affects ad
traffic and revenue, or do you never ever think about the banners that you run? Genuinely curious.
[deleted]
Because hobbies cost money? It's not their day job, they're just looking to maybe pay for their hosting and a little more, generally.
It's irrelevant what you plan to spend the revenue on. My hobbies cost money as well, but I don't subsidize them with ads. I pay for them with my own money.
If you want to run a blog as a hobby, great. Spend your own money to buy hosting and be done with it. If you want to generate revenue off your hobby, that's fine as well, but know that it's not purely a "hobby" anymore. Even if the amounts are small or you're not profitable, it doesn't matter.
EDIT: Sibling comment may be more accurate. If you show non-profitness, (I'm speaking abstractly, not in relation to linked court decision), that would be enough to sever the link between the otherwise infringing links and your revenue.
If you want to run a blog as a hobby, great. Spend your own money to buy hosting and be done with it. If you want to generate revenue off your hobby, that's fine as well, but know that it's not purely a "hobby" anymore. Even if the amounts are small or you're not profitable, it doesn't matter.
EDIT: Sibling comment may be more accurate. If you show non-profitness, (I'm speaking abstractly, not in relation to linked court decision), that would be enough to sever the link between the otherwise infringing links and your revenue.
The law is rarely interpreted so literally in court. Accordingly, few laws are written for literally-minded courts.
This isn't a hypothetical abuse of the law. This actually happens. Sites are shut down for linking to things. Sites are considered 'commercially' violating copyright because they have a banner ad that gives then a thousandth of a penny. Look at the current incarnation of the pirate bay. It doesn't even link to infringing content. It just gives you the ID code of a file that helps you find infringing files. There's no tracker, there aren't even .torrent files. Now look at how many places it's banned.
> Look at the current incarnation of the pirate bay. It doesn't even link to infringing content. It just gives you the ID code of a file that helps you find infringing files. There's no tracker, there aren't even .torrent files. Now look at how many places it's banned.
Was this really the best example you could come up with? Because that's clearly the law working as intended.
Was this really the best example you could come up with? Because that's clearly the law working as intended.
Even if that's the intent, it's pretty hard to reconcile how copyright law acts nothing like anything else. If I make a website that describes the effects of various designer drugs in glowing terms, and the closest I get to helping you buy some is telling you the chemical ID, I'm very easily on the legal side of things.
> closest I get to helping you buy some is telling you the chemical ID
How are those things in any way comparable? Knowing the chemical formula of a drug doesn't get you any closer to possessing it, but knowing the ID of a torrent lets you immediately download it.
At the end of the day, would you want law to be based on technical trivia, which can rapidly change, or do you want it be based on the intent of the persons involved?
How are those things in any way comparable? Knowing the chemical formula of a drug doesn't get you any closer to possessing it, but knowing the ID of a torrent lets you immediately download it.
At the end of the day, would you want law to be based on technical trivia, which can rapidly change, or do you want it be based on the intent of the persons involved?
You can put the ID of a chemical into a black market search engine just as you can put the ID of a torrent into the DHT search mechanisms.
Both require that you know where to go, and use a third party search system to find the people that actually have the illegal material.
At the end of the day, I want the responsibility to be on the people actually performing illegal distribution. And when someone provides a listing of what is available illegally, without who or where to get it from, that should be legal.
In your opinion, if someone writes a highly-convincing page encouraging you to smoke opium, is that intent okay? Because to me that seems about equally far-removed from any drug crime as your typical torrent search engine is from infringement.
Both require that you know where to go, and use a third party search system to find the people that actually have the illegal material.
At the end of the day, I want the responsibility to be on the people actually performing illegal distribution. And when someone provides a listing of what is available illegally, without who or where to get it from, that should be legal.
In your opinion, if someone writes a highly-convincing page encouraging you to smoke opium, is that intent okay? Because to me that seems about equally far-removed from any drug crime as your typical torrent search engine is from infringement.
But the distribution of profit is completely different in those two cases, and that's legally relevant.
When you go on the dark web and buy something illegal, the money goes to the seller, whereas presumably nobody is directly profiting from the torrents.
When you go on the dark web and buy something illegal, the money goes to the seller, whereas presumably nobody is directly profiting from the torrents.
The obvious question then is how you classify a pirate bay clone that has no ads. No profits.
Are you being serious here? How do you think courts deal with these issues every day?
Common sense. A pirate bay clone would still be knowingly and intentionally distributing links to infringing material, whether or not doing so without a financial incentive is illegal depends on the jurisdiction.
Common sense. A pirate bay clone would still be knowingly and intentionally distributing links to infringing material, whether or not doing so without a financial incentive is illegal depends on the jurisdiction.
If only determining that something is infringing were that easy. Given that everything fixed in a tangible form is copyrighted, and then copyright lasts until after the author has died, I have to know who fixed the material, when, and if they're still alive. It's an impossible situation, and you're glossing over it like it's easy and automatic.
So: common sense doesn't enter into it.
So: common sense doesn't enter into it.
And what makes it different from the hypothetical drug blog? I'm not saying it's innocent, I'm saying there's some weird mismatch here where you can't go with a mile of a copyright infringement but you can get pretty close to normal crimes as long as you don't touch anything or join a conspiracy.
> and the closest I get to helping you buy some is telling you the chemical ID, I'm very easily on the legal side of things.
And if there was a tool that would pop out, at no additional cost, an instance of the drug based on the chemical ID, I'm fairly sure that it would be considered distribution. If it wasn't, then within short order, the law would likely be changed to fix that loophole.
And if there was a tool that would pop out, at no additional cost, an instance of the drug based on the chemical ID, I'm fairly sure that it would be considered distribution. If it wasn't, then within short order, the law would likely be changed to fix that loophole.
Torrent sites merely hosting an ID that describes a file? You say that as if they are publishing UPC codes. The problem with that description is that clicking the ID launches an application that connects to other peers and proceeds to download the file in question in violation of copyright law. That's the entire point. The equivalent would be a site that contains an ID for illegal drugs, and when you click the link it connects to a pharmaceutical 3D printer that instantly constructs the drug from raw materials in violation of narcotics law.
> The equivalent would be a site that contains an ID for illegal drugs, and when you click the link it connects to a pharmaceutical 3D printer that instantly constructs the drug from raw materials in violation of narcotics law.
And the user had to previously choose how to route these requests to 3D printers through a completely independent application. The original site itself doesn't make the IDs do anything. By default clicking those magnet links does nothing at all. A UPC code is a good analogy.
So the printer is clearly doing illegal things. But is the original site illegal because a totally different person automated drug-buying? And it's not a pachinko setup either. These are truly independent actors.
And the user had to previously choose how to route these requests to 3D printers through a completely independent application. The original site itself doesn't make the IDs do anything. By default clicking those magnet links does nothing at all. A UPC code is a good analogy.
So the printer is clearly doing illegal things. But is the original site illegal because a totally different person automated drug-buying? And it's not a pachinko setup either. These are truly independent actors.
"Golly, your honor, I had no idea that magnet links could be clickable and that, if people clicked, they could download the file, thereby facilitating copyright infringement..."
Good luck selling that line of argument. You might have an argument if the protocol actually did trigger off of unlinked UPC codes and sites didn't have to construct special links that conform to a standard (in which case you could download movies by browsing Amazon or IMDB). But if a site publishes magnet links there is no denying knowledge of what those links do. Or I guess you could try to deny but no judge or jury with an IQ over 50 would believe it.
Good luck selling that line of argument. You might have an argument if the protocol actually did trigger off of unlinked UPC codes and sites didn't have to construct special links that conform to a standard (in which case you could download movies by browsing Amazon or IMDB). But if a site publishes magnet links there is no denying knowledge of what those links do. Or I guess you could try to deny but no judge or jury with an IQ over 50 would believe it.
I'm not saying the argument should be ignorance, rather that it should be lack of causality. The user has to specifically configure their system to turn these magnet IDs into a piracy opportunity. Or they have to copy each one into their torrent client of choice. Just like if I review an illegal drug and tell everyone exactly what it is so you can get the right thing from your supplier... I'm still not your supplier, I don't know who you are or where you go to buy such things. I'm not in the drug trade.
I'm sure I can find plenty of 5 star weed reviews that nobody would call illegal, even though they're calling out specific brands in a way that someone could trivially turn into a purchase.
I'm sure I can find plenty of 5 star weed reviews that nobody would call illegal, even though they're calling out specific brands in a way that someone could trivially turn into a purchase.
By that line of reasoning you could publish a website with information on hitmen for hire and put their phone number beside each listing. After all it's just a sequence of numbers and the user has to manually call or configure their device to place the phone call.
That's more like a tracker. A closer analogy to magnet links is that I tell you a hashtag that's used by a particular sort of hitman, and you use that to find your own hitmen on the social media site of your choice.
> rather that it should be lack of causality
I don't think causality is the right metric here, rather it's the fact that you're facilitating a criminal act -- you're making it easier for someone to break the law.
The proportional amount by which you facilitate the action ought to matter.
If a drug is going to cost you $50 and all I did was point you in the right direction, you still need to cough up another $50.
But if finding the right link and downloading some tool is all I need to do, then by providing the link you've taken me at least halfway, and maybe more if I already had the tool.
I don't think causality is the right metric here, rather it's the fact that you're facilitating a criminal act -- you're making it easier for someone to break the law.
The proportional amount by which you facilitate the action ought to matter.
If a drug is going to cost you $50 and all I did was point you in the right direction, you still need to cough up another $50.
But if finding the right link and downloading some tool is all I need to do, then by providing the link you've taken me at least halfway, and maybe more if I already had the tool.
Would that mean the cheaper the drug is, the more proportional responsibility I have for pointing you the way?
Your efficiency tools should not make my actions more illegal.
Your efficiency tools should not make my actions more illegal.
> they have a banner ad that gives then a thousandth of a penny
Forget about thepiratebay. It's children pocket money.
Remember the time of RapidShare/Megaupload? They were paying something like $5 per thousand downloads.
Let's imagine a popular DDL/streaming site sending one video. The next week it's been downloaded 100k times. That's $500 easy money for one upload.
Multiply that amount of money by the amount of movies, of tv show episodes, of video games (whose 20GB are split in 20 separate files).
That was the hell of a business model.
Now, let's think about the modern streaming sites. It doesn't monetize that way anymore. Instead it's putting aggressive ads on every fucking page + misleading widgets opening ad popups + affiliation with streaming services + useless redirection so visitor are forced to open more pages.
Illegal download/streaming are a very lucrative business and that's why there are so many of it. Noone is talking pennies there.
Forget about thepiratebay. It's children pocket money.
Remember the time of RapidShare/Megaupload? They were paying something like $5 per thousand downloads.
Let's imagine a popular DDL/streaming site sending one video. The next week it's been downloaded 100k times. That's $500 easy money for one upload.
Multiply that amount of money by the amount of movies, of tv show episodes, of video games (whose 20GB are split in 20 separate files).
That was the hell of a business model.
Now, let's think about the modern streaming sites. It doesn't monetize that way anymore. Instead it's putting aggressive ads on every fucking page + misleading widgets opening ad popups + affiliation with streaming services + useless redirection so visitor are forced to open more pages.
Illegal download/streaming are a very lucrative business and that's why there are so many of it. Noone is talking pennies there.
But those sites you're talking about are actually distributing content illegally. They're not linking to things, or doing even less.
These sites are exclusively linking. They NEVER host anything.
Too much ambiguity in the law creates the opportunity for arbitrary enforcement.
Probably another law that will just be applied to the "little people".
1. not everything is done for money, I see no ads on this website for example
2. If your question is to know wether a journalist would be concerned by the decision, it's easy to see he would not.
3. If the linker is linking to illegal content knowingly, and because he hopes a gain from it, I don't see how he would not be guilty. In your example, you would be guilty as hell.
4. Google don't know what is legal and what is illegal as long as nobody told them. They're protected in Europe as intermediaries by the Directive at least.
2. If your question is to know wether a journalist would be concerned by the decision, it's easy to see he would not.
3. If the linker is linking to illegal content knowingly, and because he hopes a gain from it, I don't see how he would not be guilty. In your example, you would be guilty as hell.
4. Google don't know what is legal and what is illegal as long as nobody told them. They're protected in Europe as intermediaries by the Directive at least.
> 1. not everything is done for money, I see no ads on this website for example
A VC-sponsored tech chat website has monetary value.
A VC-sponsored tech chat website has monetary value.
> other than telling you where they were.
That hardly seems like "nothing", if you're giving specific directions.
That hardly seems like "nothing", if you're giving specific directions.
Google has an army of lawyers on the other hand.
agreed, you are correct.
but this ruling also catches all search engines with advertising..
but this ruling also catches all search engines with advertising..
How do search engines meet requirement 2 (knowingly linking to illegal content)?
Search for just about any desktop software with the words "crack", "serial", "torrent",... and search engines will show results. Most of it will be virus-laden crap, but that's a separate issue. Same goes for all forms of digital media.
depends on how they defined "knowingly". DMCA clearly defined this, but without some specific legislative definition of what constitutes knowledge it's open to interpretation which is a dangerous ambiguity.
Perhaps I could send a message somehow to some Google exed to remove a bunch of links that are to illegal content, wait 2 weeks then claim that was sufficient notice for them to be aware of the content and therefore meet requirement #2.
To be fair, I didn't dig to see if this second requirement is clearly defined.
Perhaps I could send a message somehow to some Google exed to remove a bunch of links that are to illegal content, wait 2 weeks then claim that was sufficient notice for them to be aware of the content and therefore meet requirement #2.
To be fair, I didn't dig to see if this second requirement is clearly defined.
What the decision said is much closer to "or" than "and".
Such linking is, as your quote says, not infringement if it is done without pursuit of financial gain and is done by someone who does not or cannot reasonably know the illegality of the linked material. In other words, they decided that linking to illegally published material is copyright infringement if it was done for commercial purposes or by someone who knew that the linked material was illegally published.
The court also concluded that, if the linking was done for commercial purposes, it must be presumed that the person publishing the links knew that the linked material was illegally published.
Such linking is, as your quote says, not infringement if it is done without pursuit of financial gain and is done by someone who does not or cannot reasonably know the illegality of the linked material. In other words, they decided that linking to illegally published material is copyright infringement if it was done for commercial purposes or by someone who knew that the linked material was illegally published.
The court also concluded that, if the linking was done for commercial purposes, it must be presumed that the person publishing the links knew that the linked material was illegally published.
> The court also concluded that, if the linking was done for commercial purposes, it must be presumed that the person publishing the links knew that the linked material was illegally published.
So... no more search engines, then?
So... no more search engines, then?
how are search engines supposed to figure out if a link contains illegal content or not
The judges will likely wash their hands of the matter as they neither know nor care how people are supposed to comply with the law. So it will boil down to lobbying by the people with money to ensure that their businesses can continue to operate. And if the requirements for compliance crowd out competition, so much the better.
Clairvoyance.
Presumption of guilt is fascist. Prosecuting the accessory before the crime. Content is not inherently illegal in and of itself. Was it was actually found to be illegally published by an EU court? No. I would argue they have no copyright here. She is very much in the pubic domain. (sic)
The situation is more nuanced than the article suggests.
The ruling is on a matter of law. It isn't a ruling on the guilt of GeenStijl, or anyone else that shares links. It gives the referring court instructions for how to interpret the EU copyright directive, specifically on whether the criminal act of communicating a work to the public without the consent of the copyright owner had occurred.
The Supreme Court of the Netherlands (Hoge Raad) asked the Court of Justice of the European Union (CJEU) to rule on in what circumstances should sharing links to infringing content be considered a "communication to the public", with specific attention to how the decision is effected by the prior availability of the content and whether the person sharing the links knew the content was infringing.
The ruling of the CJEU was that when somebody knowingly shares links to infringing content for money, it should be presumed that they knew the content was infringing. This is not strictly an answer to the question, IMO, but it does establish criminal intent.
It is being generally reported that commercial infringing linking has been generally ruled to be "communication to the public". I don't think that's the ruling, although the part of the judgement that isn't the ruling does say that. It would be interesting to know whether the whole judgement, or just the ruling at the end, is considered binding. I tend to assume the later, since the ruling is a repetition of the last paragraph of the judgement, and why would that happen if the judgement was binding?
(Edit: Removed lots of unnecessary words.)
The ruling is on a matter of law. It isn't a ruling on the guilt of GeenStijl, or anyone else that shares links. It gives the referring court instructions for how to interpret the EU copyright directive, specifically on whether the criminal act of communicating a work to the public without the consent of the copyright owner had occurred.
The Supreme Court of the Netherlands (Hoge Raad) asked the Court of Justice of the European Union (CJEU) to rule on in what circumstances should sharing links to infringing content be considered a "communication to the public", with specific attention to how the decision is effected by the prior availability of the content and whether the person sharing the links knew the content was infringing.
The ruling of the CJEU was that when somebody knowingly shares links to infringing content for money, it should be presumed that they knew the content was infringing. This is not strictly an answer to the question, IMO, but it does establish criminal intent.
It is being generally reported that commercial infringing linking has been generally ruled to be "communication to the public". I don't think that's the ruling, although the part of the judgement that isn't the ruling does say that. It would be interesting to know whether the whole judgement, or just the ruling at the end, is considered binding. I tend to assume the later, since the ruling is a repetition of the last paragraph of the judgement, and why would that happen if the judgement was binding?
(Edit: Removed lots of unnecessary words.)
Techdirt has a good writeup on the new ruling. One of the good points made on Techdirt, is regarding search engines which are obviously for-profit. How in the world would Google keep from linking to material which is violating someone's copyright?
https://www.techdirt.com/articles/20160908/11305735465/terri...
https://www.techdirt.com/articles/20160908/11305735465/terri...
simple: google has no idea what it indexes. Please read the full ruling, which explains this only applies to those who willingly and intentionally link to content they _know_ is illegal, _and_ do so for monetary gain. Which is perfectly reasonable. The article posted to HN is pretty much fear-mongering for te purpose of getting some clicks.
It is not true that the ruling says that "this only applies to those who willingly and intentionally link to content they _know_ is illegal, _and_ do so for monetary gain." The ruling explicitly states that the first condition is sufficient to constitute a 'communication to the public' and that, when determining whether posting a link to such content constitutes a 'communication to the public', we must assume that the second condition implies the first condition. This last bit is in the ruling itself. In its consideration of the questions referred, the court qualifies a similar statement with "in so far as that rebuttable presumption is not rebutted", which may at least help those who can disprove that presumption.
Two relevant portions of the court's judgment (my emphasis added to the latter):
> In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
> or whether, on the contrary, those links are provided for such a purpose, _a situation in which that knowledge must be presumed_.
Two relevant portions of the court's judgment (my emphasis added to the latter):
> In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
> or whether, on the contrary, those links are provided for such a purpose, _a situation in which that knowledge must be presumed_.
It's not that easy. What if the MPAA, Playboy, etc. send file filenames to Google and say "It's illegal to link to this file and if you do so, you are willingly and intentionally violating our copyright" Is that really what we want? It's a slippery slope when courts make these rulings without really understanding the impacts.
"What if?" That's already what happens. Google puts up a notice that some results have been omitted due to DMCA requests and links a copy of the requests.
[deleted]
If you say that Google has no idea what it indexes then we can say that the creator of Silk Road had no idea what was sold there, he just made a clone of ebay. Well in the end everything depends on the judge's interpretation of the law. Especially when it allows different interpretations.
In fact google just doesn't want to moderate illegal content. It doesn't even remove the websites with infringing material, only single links.
In fact google just doesn't want to moderate illegal content. It doesn't even remove the websites with infringing material, only single links.
>google has no idea what it indexes.
In the same way a drug dealer has no idea what's in his stash; they know exactly the sort of thing in there, roughly how much of it is there but not the very specific details.
In the same way a drug dealer has no idea what's in his stash; they know exactly the sort of thing in there, roughly how much of it is there but not the very specific details.
Illegal content? I guess they mean copyrighted content? Isn't that pretty much the entire internet? Even this comment is my intellectual property, so will this make you a criminal if you link to this comment without my consent? And isn't youtube making money of copyrighted content, or does youtube have a special deal with the court that only they are allowed to do this?
They mean unauthorized copies of copyrighted works, not all copyrighted works.
A previous ruling of the CJEU covered a similar situation to your hypothetical, and ruled that once something is made freely available to the general Internet by the copyright holder, they lose the right to control who can link to that content. Of course, they retain the right to control who can copy it.
YouTube has a system in place for reporting infringing content. It's not necessarily very effective, but it's better - from a legal standpoint - than being told repeatedly that content is infringing and but intentionally and knowingly republishing links to the content each time another set of infringing copies gets taken down.
A previous ruling of the CJEU covered a similar situation to your hypothetical, and ruled that once something is made freely available to the general Internet by the copyright holder, they lose the right to control who can link to that content. Of course, they retain the right to control who can copy it.
YouTube has a system in place for reporting infringing content. It's not necessarily very effective, but it's better - from a legal standpoint - than being told repeatedly that content is infringing and but intentionally and knowingly republishing links to the content each time another set of infringing copies gets taken down.
Can anyone tell if this is transitive? Let's say you link to a picture or download you don't own. This ruling says you are guilty of infringement, right? Now what happens when I link to your site? Am I guilty too? And when someone else links to mine? Am I now responsible for ensuring the entire web of links downstream of mine is not infringing? Or is there a criminal intent thing here, so people like Google can still link to the pirate bay because it's simply part of the internet?
So then Facebook can be sued if someone posts a link to my copyrighted content? I hope none of my "friends" post a link to the picture I just took and don't want on Facebook then. I wouldn't want to have to sue them.
This ruling will take about 20 seconds before it is abused for profit.
This ruling will take about 20 seconds before it is abused for profit.
> This ruling will take about 20 seconds before it is abused for profit.
You’ll get laughed out of every court.
Remember, the EU does not operate under common law, but civil law, so the value of a precedence case is already limited.
In such a case, more specific interpretation is definitely necessary.
You’ll get laughed out of every court.
Remember, the EU does not operate under common law, but civil law, so the value of a precedence case is already limited.
In such a case, more specific interpretation is definitely necessary.
You’ll get laughed out of every court.
Apparently not, if other courts agree with this one.
Apparently not, if other courts agree with this one.
First, PLEASE read the ruling. It’s disheartening how many are discussing it without reading first.
Second, the court made a ruling about the application of a law in a specific set of cases:
A company takes a link which they know points to illegal material, and publish it, for the intention of making profit.
Third, this is Civil Law. NOT Common Law. Precedence means nothing.
So, if that was actually true, due to (3), Google could have been sued thousands of times before, or Movie4k.to or so on – but they haven’t.
Even kino.to could only be sued because they paid the uploaders of illegal movies money – not because they linked to them.
Second, this specific case here doesn’t even apply to almost every other website.
The argument is "because they published it and claimed exclusivity to make money, they had to know it was illegal".
Which means if you have user generated content, standard C&D or DMCA stuff applies, and only if you violate that, it can be infringing.
Second, the court made a ruling about the application of a law in a specific set of cases:
A company takes a link which they know points to illegal material, and publish it, for the intention of making profit.
Third, this is Civil Law. NOT Common Law. Precedence means nothing.
So, if that was actually true, due to (3), Google could have been sued thousands of times before, or Movie4k.to or so on – but they haven’t.
Even kino.to could only be sued because they paid the uploaders of illegal movies money – not because they linked to them.
Second, this specific case here doesn’t even apply to almost every other website.
The argument is "because they published it and claimed exclusivity to make money, they had to know it was illegal".
Which means if you have user generated content, standard C&D or DMCA stuff applies, and only if you violate that, it can be infringing.
So now publishers must determine what is legal or not. They must do the job of judges as well or better as them or risk the very very high penalties attached to copyright infringement. This can only lead to defensive postures and extensive amounts of self-censorship to avoid that huge risk.
I don't understand why Europe and the US expend so much money and energy upholding the very laws that allow the big players like Amazon, Apple, Google, and Starbucks to evade taxes. The whole notion of 'intellectual property' seems purpose built to evade taxation. How are these governments funding these cases? With taxes. Taxes not paid by those who are benefiting most from these laws. It's a negative feedback loop. The more they spend, the more they ensure it is a winner take all scenario, and the more the winner will avoid paying taxes.
>On those grounds, the Court (Second Chamber) hereby rules:
>Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
That last sentence is a bit hard to follow, but it appears to say that linking to freely available third party content constitutes a communication to the public of the freely available third party content only if financial gain was pursued by the linking party when they understood the third party content to be "illegal".
It is a seriously bad construation to infer that communication of public names (URLs) is a "communication to the public" of the actual third party content, unless the URL was designed by the third party for said content (however, in such case, the content was already communicated to the public by the third party).
>Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
That last sentence is a bit hard to follow, but it appears to say that linking to freely available third party content constitutes a communication to the public of the freely available third party content only if financial gain was pursued by the linking party when they understood the third party content to be "illegal".
It is a seriously bad construation to infer that communication of public names (URLs) is a "communication to the public" of the actual third party content, unless the URL was designed by the third party for said content (however, in such case, the content was already communicated to the public by the third party).
Funny, Rick Falkvinge took the opposite interpretation on the ruling:
> EU Supreme Court: Hyperlinks are legal, even when linking to illegal publications
https://www.privateinternetaccess.com/blog/2016/09/eu-suprem...
> EU Supreme Court: Hyperlinks are legal, even when linking to illegal publications
https://www.privateinternetaccess.com/blog/2016/09/eu-suprem...
It's time to start calling this something other than copyright. It's evolved way beyond the right to copy content.
So Yahoo! is a large corporation built on illegal acts ?
Interesting how the law is so perverted that irrational seems to be the norm.
Interesting how the law is so perverted that irrational seems to be the norm.
i think it means: "linking to illegal content 'knowingly' and 'making money of it' is copyright infringement'
also second part can be optional I guess, but i think it heavily influenced the decision on this case
also second part can be optional I guess, but i think it heavily influenced the decision on this case
[deleted]
> European court says linking to illegal content is copyright infringement
If that were remotely true somebody better tell Google quick.
If that were remotely true somebody better tell Google quick.
So no Google and other search engines in the EU? Or as usual law will only be applied to the small guys.
European law isn't precedent based.
That does not mean that this ruling doesn't have any effect on future rulings of "smaller" courts.
The European Court is asked by the local courts how to interpret European laws. Otherwise why should the local court should have asked the European Court in the first place?
I don't have a better source than Wikipedia at the moment[1], but local courts will likely orient their decisions on this one.
[1] https://de.m.wikipedia.org/wiki/Europ%C3%A4ischer_Gerichtsho...
The European Court is asked by the local courts how to interpret European laws. Otherwise why should the local court should have asked the European Court in the first place?
I don't have a better source than Wikipedia at the moment[1], but local courts will likely orient their decisions on this one.
[1] https://de.m.wikipedia.org/wiki/Europ%C3%A4ischer_Gerichtsho...
My god, I love Europe, but they have some of the most brain-dead results when it comes to decisions that affect the Internet.
Not if you read the actual ruling instead of an article turning it into sensationalism with facts omitted. Always a good idea to get the facts before you commit to making claims.
In this case the _actual_ ruling is about linking to content that you know is illegal, but you still intentionally link to for monetary gains. Any reasonable court, or person for that matter, would go "oh... yeah that's obviously a VERY DIFFERENT matter from this article's claim, and punishing someone for that is kind of reasonable."
In this case the _actual_ ruling is about linking to content that you know is illegal, but you still intentionally link to for monetary gains. Any reasonable court, or person for that matter, would go "oh... yeah that's obviously a VERY DIFFERENT matter from this article's claim, and punishing someone for that is kind of reasonable."
If you take it as a given that any news publication is in some way or other 'for profit' and that all links are placed intentional some of the sensationalism is warranted.
"Illegal" content is anything that the source does not want distributed, and this ruling could make it quite hard for news sources to link to places like wikileaks.
"Illegal" content is anything that the source does not want distributed, and this ruling could make it quite hard for news sources to link to places like wikileaks.
How can this work? A link is just a reference to a mutable destination and there's no way to guarantee that what's pointed at stays legal after the link was put up. It can change at any time and turn into something illegal, even though the original content was not.
I do get the intent here, but it absolutely misses the point.
Edit: The ruling acknowledges the target is mutable, but it also says that the poster of a link on a page that's for-profit must check the target content. However, I cannot find anything how one should prove it was legal at time of linking. The only sensible thing I can find is that once notified a link has to be taken down. Did I miss something?
I do get the intent here, but it absolutely misses the point.
Edit: The ruling acknowledges the target is mutable, but it also says that the poster of a link on a page that's for-profit must check the target content. However, I cannot find anything how one should prove it was legal at time of linking. The only sensible thing I can find is that once notified a link has to be taken down. Did I miss something?
Have you read the decision[0] though? It specifically addresses this.
> it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
[0]http://curia.europa.eu/juris/document/document.jsf?text=&doc...
> it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
[0]http://curia.europa.eu/juris/document/document.jsf?text=&doc...
I realize this is the EU, but if this ruling were to happen in the US, sites like cracked.com who link to copyright-encumbered content all the time (mostly Youtube clips of movies and TV shows, often produced by highly litigious houses like Disney/Marvel Studios) and make a ton of money from ads, would quickly be sued out of existence.
Usually the amount taken of a work is evaluated for a fair use defense, as is its inclusion in a broader work (article, in this case). Taking a small excerpt of a movie for purposes of parody is different from publishing a photo wholesale.
I agree, but again using Cracked as an example, they have many times linked to a 30+ minute video to make a one-sentence joke. That's far beyond fair use as far as the law is written. They also obviously do not get prior permission from the publisher; a typical older article from Cracked will have embedded videos that show "this was removed for copyright violation" placeholders.
You don't need prior permission if it's fair use, and it can still be fair use even if the video is removed (the DMCA ensures it has to be taken down regardless, at least until the uploader sends a counter-notice, and YT goes even beyond that).
Still, the 30m for a single joke might be infringing, yes, but so what? If it would be infringement if they served the video from their own servers, why shouldn't it be by embedding from YT?
Still, the 30m for a single joke might be infringing, yes, but so what? If it would be infringement if they served the video from their own servers, why shouldn't it be by embedding from YT?
>If it would be infringement if they served the video from their own servers, why shouldn't it be by embedding from YT? //
Because then the infringement, if there is one, is YouTube's and not the linker-to-YouTube's.
Because then the infringement, if there is one, is YouTube's and not the linker-to-YouTube's.
No, according to the courts, (in the EU) it isn't. My question is: why shouldn't it be?
EDIT: I mean, should it be.
> amount taken
Since a link doesn't take anything from the original work - it only references where the work may be found - then this amount is zero.
Since a link doesn't take anything from the original work - it only references where the work may be found - then this amount is zero.
The law itself doesn't use the word "take" anyway, so your objection is irrelevant.
I never said the law used the word "take". So what. I was obviously referring to the fact that no copy is being made, and thus copyright doesn't apply and "fair use" is irrelevant. A link isn't anything like using a small portion of a work for e.g. review and critique.
Would that be a bad thing though? Those websites are purposefully acting in a way that doesn't respect the copyright of the owner of the content they want to show.
That they do this through a third-party host shouldn't be that important.
That they do this through a third-party host shouldn't be that important.
Yes. As a strong opinion holder in the copyleft philosophy of any and all content, I feel such sites have a right to exist and profit from content as much as the copyright holders (who are not necessarily the creators of said content).
But hey, this is just the opinion of some random dude on the Internet.
But hey, this is just the opinion of some random dude on the Internet.
A random dude on the internet who must know that they their opinion is not current law in any of the countries under discussion?
If what is and what isn't law was that clear cut, the case wouldn't escalate to the European Court of Justice. Add to that that laws are arbitrarily incoherent and therefore the decision is just one possible interpretation of the law, albeit one that will be upheld.
Using the status quo as the basis of an argument of how things should be isn't very meaningful...
Why shouldn't it, when the host is a much more obvious target?
That the host is breaking the law doesn't mean the site that links to the host isn't breaking it as well.
If it already is accessible to that public, a mere pointer shouldn't be illegal.
It could be counted as advertising illegal activities, which is often illegal, too.
Byebye phonebook
IANAL, but my reading of that is if one makes money from one's site (e.g. by having ads) then EU will assume that one knows whether or not linked content is infringing. Because €10/month from adwords is totally enough to hire a lawyer to evaluate every link that users post.
Anyway, how does that "specifically address" GP's question about mutability? That isn't even mentioned in the bolded text.
Anyway, how does that "specifically address" GP's question about mutability? That isn't even mentioned in the bolded text.
As far as I can see from the rest of the document, the reason why profit motive is clumsily forced into that sentence is because it was argued that the act of posting the link itself was an attempt to increase the site's revenue because the owners were aware the public would be interested in visiting their webpage linking to the material because it wasn't authorised for publication anywhere at the time. Hence their decision to draw attention to it with "leaked pics" headline and post-DMCA-takedown followup headlines referring to the copyright holder whilst linking to new copies of the material. In other words they're saying that a publisher that has demonstrated awareness that a particular piece of material is so difficult to find that they can generate extra pageviews and revenue from communicating the fact they have a link to it, they can reasonably be expected to have carried out some checks to the provenance of the linked material. We're talking about a situation where the existence of the link and intimation that it might not be authorised was the subject of a headline, not an entry in a directory or search result. A natural reading of "links are provided without the pursuit of financial gain" is that if the posting of hyperlink(s) to copyrighted material is incidental to the profitability of your site you're probably not in danger of falling foul of that particular directive.
There are other more unambiguous statements acknowledging existing case law which appears to rule out webmasters falling foul of websites' mutability like: The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work
There are other more unambiguous statements acknowledging existing case law which appears to rule out webmasters falling foul of websites' mutability like: The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work
Since links are just addresses that can be followed automatically, I strongly disagree with the ruling that this applies under the cited precedence;
in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work
Anything already in a public index should not be illegal to point to.
in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work
Anything already in a public index should not be illegal to point to.
> Because €10/month from adwords is totally enough to hire a lawyer to evaluate every link that users post.
And that’s where courts will just classify you as noncommercial.
If you don’t make enough with it to finance your lifestyle, it’s very likely not really commercial.
And that’s where courts will just classify you as noncommercial.
If you don’t make enough with it to finance your lifestyle, it’s very likely not really commercial.
That's not true - at least for Germany. Here a repeated action to earn a profit is considered commercial activity.
I'm not sure what a court would think about 10€/m, but I guess 100€/m would be considered commercial.
EDIT: the common description of being commercial in Germany is: a planned, longer term acting to make money - it's not even necessary to make a profit. Source (in German): http://www.it-recht-kanzlei.de/verbraucher-unternehmer.html
I'm not sure what a court would think about 10€/m, but I guess 100€/m would be considered commercial.
EDIT: the common description of being commercial in Germany is: a planned, longer term acting to make money - it's not even necessary to make a profit. Source (in German): http://www.it-recht-kanzlei.de/verbraucher-unternehmer.html
Yes, but there’s a legal difference, and courts in Germany have to take Verhältnismäßigkeit into account.
You can’t sue the parents of a kid selling lemonade in their frontyard, even though it’d technically be a violation of the Lebensmittelverordnung.
Just like a small webblog which does not even qualify as Nebeneinkunft, and which is not taxable, would also be not relevant for such a case, unless you published it knowing it was illegal to make that money.
You can’t sue the parents of a kid selling lemonade in their frontyard, even though it’d technically be a violation of the Lebensmittelverordnung.
Just like a small webblog which does not even qualify as Nebeneinkunft, and which is not taxable, would also be not relevant for such a case, unless you published it knowing it was illegal to make that money.
The ruling acknowledges that targets linked to are mutable, but it's just that, an acknowledgement. Not being a lawyer, I can't say what it means for a judge to confirm that link targets are not immutable, and leaving it at that.
[deleted]
Yes, I did. Please see my sibling comment and EDIT addendum.
This was exactly my thought. It's also possible to create new URLs leading to the same resource through e.g. a link shortener like Bitly or a proxy service. Pushing this further, would something that is not itself a URL but from which the URL could be recovered, e.g. a hash of the URL, be in violation? Is it transitive, such that a URL from one page linking to another page with the original offending link is also in violation? I'm not a lawyer but this ruling seems to open the floodgates.
In absolute terms your argument is valid but I doubt they will use it against a situation where a single link got hijacked. Its more to have the legal framework to go after sites who systematically (and intentionally) link to pirated content.
>but I doubt they will use it against a situation
Until that one case where they do, and you're on the other end of it. Hoping for a sympathetic reading of the law is not recommended.
Until that one case where they do, and you're on the other end of it. Hoping for a sympathetic reading of the law is not recommended.
Mens rea.
I agree, this is bad for the internet. However, some context is missing:
The case was in the Netherlands, regarding the website GeenStijl linking to leaked playboy pictures.
The court said that 1) GeenStijl made money from it 2) they should and could have know, and most probably knew, that this content was illegal (because they posted it as 'leaked nudes!!').
The combination of these (earning money from content that is known to be illegal) was what made the decision.
The court also said that these are requirements in the future.
So, if I link to a page on a forum of my blog that becomes illegal alter, neither of the requirements are fulfilled. No problem. Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling.
That is how I have understood it
The court also said that these are requirements in the future.
So, if I link to a page on a forum of my blog that becomes illegal alter, neither of the requirements are fulfilled. No problem. Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling.
That is how I have understood it
What if the link had consisted of a prominent section "How to find it" consisting of the words (I'm making this up) "Search Google for leaked playboy pictures from 2011, and click on the first link, which should be a site named after a fish."
Now it is a passing reference to how to find it -- but your criteria that 1) they made money from it, and 2) they could know and should know that this content is illegal.
Well, all right. So let's say that is contributing to copyright infringement. Let's make it illegal.
Now what if we change the passing reference to be "the pictures are pretty easy to find via Google." What if we imagine that this is how the reference now reads.
What now? What if it's illegal and what if the site makes money off of it?
How about Hacker News. It is a statistical certainty that at least one reader decided to find the pictures based on our report here. It's certain. With absolute certainty you can say that someone searched and found the pictures.
Does YCombinator get value from the fact that this report contributes to interesting information being available here? Absolutely.
So, should Hacker News be allowed to report on this court case as explicitly as it has done?
Remember: it is absolutely certain that some people have found the pictures as a result, and it is also absolutely certain that they would know this would happen. They directly benefit from it.
So where does it end?
A good place to draw the line might be: reproducing content. Since, you know, that's what copyright ... wait for it ... actually limits...
Now it is a passing reference to how to find it -- but your criteria that 1) they made money from it, and 2) they could know and should know that this content is illegal.
Well, all right. So let's say that is contributing to copyright infringement. Let's make it illegal.
Now what if we change the passing reference to be "the pictures are pretty easy to find via Google." What if we imagine that this is how the reference now reads.
What now? What if it's illegal and what if the site makes money off of it?
How about Hacker News. It is a statistical certainty that at least one reader decided to find the pictures based on our report here. It's certain. With absolute certainty you can say that someone searched and found the pictures.
Does YCombinator get value from the fact that this report contributes to interesting information being available here? Absolutely.
So, should Hacker News be allowed to report on this court case as explicitly as it has done?
Remember: it is absolutely certain that some people have found the pictures as a result, and it is also absolutely certain that they would know this would happen. They directly benefit from it.
So where does it end?
A good place to draw the line might be: reproducing content. Since, you know, that's what copyright ... wait for it ... actually limits...
I don't think reproduction is a good line at all; HN could still be guilty if someone posted an unlicensed copyrighted work (say, a news article).
Intention and knowledge is the best dividing line, in my opinion, and courts certainly take it into account. HN blindly reproduces what people post, whereas the link in question was posted by the site editors themselves - that's a clear distinction, and in fact many lawsuits (in the US) were based on it.
I do disagree with the court's decision to presume that any publication for financial gain is done with knowledge of the copyright status, though.
Intention and knowledge is the best dividing line, in my opinion, and courts certainly take it into account. HN blindly reproduces what people post, whereas the link in question was posted by the site editors themselves - that's a clear distinction, and in fact many lawsuits (in the US) were based on it.
I do disagree with the court's decision to presume that any publication for financial gain is done with knowledge of the copyright status, though.
> I don't think reproduction is a good line at all; HN could still be guilty if someone posted an unlicensed copyrighted work (say, a news article).
There are 100's of these on HN already.
Just a few samples:
https://news.ycombinator.com/item?id=6262777
https://news.ycombinator.com/item?id=10862279
There are 100's of these on HN already.
Just a few samples:
https://news.ycombinator.com/item?id=6262777
https://news.ycombinator.com/item?id=10862279
Yes. If HN had no Safe Harbour protection, it could be sued to oblivion for those infringements.
When they said copying was what should be seen as the line I assumed that was within the framework of current Western laws, so things like intent (mens rea) are a given.
[deleted]
IANAL, but it seems they are saying that the financial gain shows mens rea.
are you and your parent referring to me by "they" (as a gender-neutral term)?
What I meant with my comment is that a pretty clear example of copyright would be, for example, hosting and including the copyrighted content. (If the content is literally on the hosting server - posting full text is obviously an example of this. Hosting full images is another example.)
A less clear example would be hotlinking. (So that the pictures are loaded and shown by the browser, and it appears to be part of the article, but is in fact an offsite image anchor.)
An even less clear example would be a URL link. That is what we're reading about. But What if it's not clickable? (hxxp:// whatever(dot) whatever - replace hxxp with http and (dot) with . -- what then?)
An even less clear example is telling you explicitly what Google search to search for, and how you can know that you've found it. (e.g. words like "Search Google for leaked playboy pictures from 2011, and click on the first link, which should be a site named after a fish." - I'm making this up.)
But a less clear example still would be "It's easy to find. Just search for [vague reference but one that is clear enough]"
So you want to use the standard of "mens rea."
How can we REALLY judge what someone's reason might be?
For example, it could be that the real reason to report on something is so that interested readers might find it.
Example: "The Pirate Bay is now hosting the entire (name something)". It could be that the primary reason to say that is that it provides people information that they can immediately use to start infringing the copyright of (something).
But what if it's couched in any other report?
"What the fact that the pirate bay is hosting (something) says about democracy and our copyright laws"? Should that be an illegal post to make?
You understand what I'm saying. It's an extremely slippery slope.
But one very, very clear line is: "are you ACTUALLY yourself hosting the content"? Because if not, then there's an actual target to shut down.
I guess it's like the difference between selling drugs, and saying "you know you can just ask the kids hanging out on the corner of 6th and 8th streets, they'll hook you up." Whether that latter shows criminal conspiracy or whatever, it doesn't really matter - you can actually just shut down the kids, you don't have to shut down the free speech around it or judge mens rea.. . .
What I meant with my comment is that a pretty clear example of copyright would be, for example, hosting and including the copyrighted content. (If the content is literally on the hosting server - posting full text is obviously an example of this. Hosting full images is another example.)
A less clear example would be hotlinking. (So that the pictures are loaded and shown by the browser, and it appears to be part of the article, but is in fact an offsite image anchor.)
An even less clear example would be a URL link. That is what we're reading about. But What if it's not clickable? (hxxp:// whatever(dot) whatever - replace hxxp with http and (dot) with . -- what then?)
An even less clear example is telling you explicitly what Google search to search for, and how you can know that you've found it. (e.g. words like "Search Google for leaked playboy pictures from 2011, and click on the first link, which should be a site named after a fish." - I'm making this up.)
But a less clear example still would be "It's easy to find. Just search for [vague reference but one that is clear enough]"
So you want to use the standard of "mens rea."
How can we REALLY judge what someone's reason might be?
For example, it could be that the real reason to report on something is so that interested readers might find it.
Example: "The Pirate Bay is now hosting the entire (name something)". It could be that the primary reason to say that is that it provides people information that they can immediately use to start infringing the copyright of (something).
But what if it's couched in any other report?
"What the fact that the pirate bay is hosting (something) says about democracy and our copyright laws"? Should that be an illegal post to make?
You understand what I'm saying. It's an extremely slippery slope.
But one very, very clear line is: "are you ACTUALLY yourself hosting the content"? Because if not, then there's an actual target to shut down.
I guess it's like the difference between selling drugs, and saying "you know you can just ask the kids hanging out on the corner of 6th and 8th streets, they'll hook you up." Whether that latter shows criminal conspiracy or whatever, it doesn't really matter - you can actually just shut down the kids, you don't have to shut down the free speech around it or judge mens rea.. . .
By "they" I meant the judges.
Personally, I think not having mens rea as a standard is killing any possibility of user-generated content, since any such site could be convicted if any of its users posted an infringing work. The Safe Harbour provision is one of the few good parts of the DMCA, but it requires judging mens rea, and once you have to judge that, adding linking doesn't have bring any further issues.
In Brilliant v. W.B. Productions Inc., the court ruled that the phrase "I may not be totally perfect, but parts of me are excellent" was copyrighted. Under your black-and-white standard, without judging intention, HN would now be guilty of infringement. How could it continue to exist with this threat?
Mens rea might be hard to prove (and presumption of innocence should be applied), but strict liability becomes absurd.
Personally, I think not having mens rea as a standard is killing any possibility of user-generated content, since any such site could be convicted if any of its users posted an infringing work. The Safe Harbour provision is one of the few good parts of the DMCA, but it requires judging mens rea, and once you have to judge that, adding linking doesn't have bring any further issues.
In Brilliant v. W.B. Productions Inc., the court ruled that the phrase "I may not be totally perfect, but parts of me are excellent" was copyrighted. Under your black-and-white standard, without judging intention, HN would now be guilty of infringement. How could it continue to exist with this threat?
Mens rea might be hard to prove (and presumption of innocence should be applied), but strict liability becomes absurd.
I'm outside of my league with this mens rea discussion (didn't look into the details) but obviously the fact that you've performed what amounts to copyright infringement through quoting the phrase you discussed, is quite a different problem from this infringement link.
Let's make it explicit. The Pirate Bay is a common site for piracy, so I went there to get you this link:
* https://thepiratebay.org/torrent/15706308/Captain_America__C... <---- this is the line that starts with an asterisk
What I did was go to the site, then I clicked "top 100" in the header, then I clicked "video | movies" and it was the second link, called "Captain America: Civil War (2016) English BrRip 1080p x264".
Actually you can also find it by googling "Captain America: Civil War (2016) English BrRip 1080p x264" and adding "site:thepiratebay.org" to your query.
Okay, now let's dissect what just happened.
Level1: Firstly, under traditional interpretations of copyright law, the entirety of the present comment (the whole of this comment you're reading) is not infringing on any kind of copyright. I didn't even quote your purposefully short problematic phrase, which you chose because it has been found to be worthy of copyright protection despite its brevity (i.e. similarly protected as a longer work, such as a novel or article). There's nothing copyrighted in this comment, I just authored it out of thin air. I didn't reproduce anything, or include the phrase you held to be protected. I typed it all as a new work.
Level2: Next: I've actually included a link to infringing materials, though. Now am I guilty of some kind of accessory to copyright infringement? My link is actually similar to the article we're discussing. This "level 2" infringement is occurring in the present comment, but if I were to remove the line that starts with an asterisk it would no longer be level 2 infringement. There would no longer be any URL in this comment.
Level3: But, thirdly: what if you remove my link? I've still given you enough information to get to it exactly. The line immediately after the asterisked line tells you exactly how to get there. It just adds 15-45 seconds of inconvenience versus a simple click, and maybe a 20-50% chance that you fail to follow my instructions if you choose to try to do so.
In fact, other than the level-1 line in the sand (which this comment doesn't cross, since I'm not reproducing anything including the short problematic protected phrase you quoted) the rest of the lines in this comment are completely and utterly murky.
Okay, so you've given a tangential example where your comment actually crosses the level-1 line, due to reproducing the phrase "I may ...excellent". Obviously that is an extreme example, but we don't really need to discuss it. Because this present comment (that I'm writing) does not cross that standard. It does, however, cross the level 2 and level 3 standard.
And those lines are murky as hell. There is just nothing there to draw the line at: "THIS is what you're allowed to write; THIS is what you're not."
It has nothing to do with reproducing content - it's about reference to where copyrighted works are available.
I welcome your thoughts as you do know more about this than I do however.
Let's make it explicit. The Pirate Bay is a common site for piracy, so I went there to get you this link:
* https://thepiratebay.org/torrent/15706308/Captain_America__C... <---- this is the line that starts with an asterisk
What I did was go to the site, then I clicked "top 100" in the header, then I clicked "video | movies" and it was the second link, called "Captain America: Civil War (2016) English BrRip 1080p x264".
Actually you can also find it by googling "Captain America: Civil War (2016) English BrRip 1080p x264" and adding "site:thepiratebay.org" to your query.
Okay, now let's dissect what just happened.
Level1: Firstly, under traditional interpretations of copyright law, the entirety of the present comment (the whole of this comment you're reading) is not infringing on any kind of copyright. I didn't even quote your purposefully short problematic phrase, which you chose because it has been found to be worthy of copyright protection despite its brevity (i.e. similarly protected as a longer work, such as a novel or article). There's nothing copyrighted in this comment, I just authored it out of thin air. I didn't reproduce anything, or include the phrase you held to be protected. I typed it all as a new work.
Level2: Next: I've actually included a link to infringing materials, though. Now am I guilty of some kind of accessory to copyright infringement? My link is actually similar to the article we're discussing. This "level 2" infringement is occurring in the present comment, but if I were to remove the line that starts with an asterisk it would no longer be level 2 infringement. There would no longer be any URL in this comment.
Level3: But, thirdly: what if you remove my link? I've still given you enough information to get to it exactly. The line immediately after the asterisked line tells you exactly how to get there. It just adds 15-45 seconds of inconvenience versus a simple click, and maybe a 20-50% chance that you fail to follow my instructions if you choose to try to do so.
In fact, other than the level-1 line in the sand (which this comment doesn't cross, since I'm not reproducing anything including the short problematic protected phrase you quoted) the rest of the lines in this comment are completely and utterly murky.
Okay, so you've given a tangential example where your comment actually crosses the level-1 line, due to reproducing the phrase "I may ...excellent". Obviously that is an extreme example, but we don't really need to discuss it. Because this present comment (that I'm writing) does not cross that standard. It does, however, cross the level 2 and level 3 standard.
And those lines are murky as hell. There is just nothing there to draw the line at: "THIS is what you're allowed to write; THIS is what you're not."
It has nothing to do with reproducing content - it's about reference to where copyrighted works are available.
I welcome your thoughts as you do know more about this than I do however.
you do know more about this than I do however.
Maybe, but remember that a little knowledge is more dangerous than none, and it's all I have :)
That said, from what I can tell, I don't think it's murky - according to the court, all of those levels would be infringing.
Maybe, but remember that a little knowledge is more dangerous than none, and it's all I have :)
That said, from what I can tell, I don't think it's murky - according to the court, all of those levels would be infringing.
>I don't think it's murky - according to the court, all of those levels would be infringing.
You're saying that if I were to say "it's easy to find a blue ray rip of Captain America" (this is the whole of my reference, exactly in these words) then I would be guilty of copyright infringement? Because that is one of the lines in the sand. I don't see it. But telling you what to Google is nearly that.
You're saying that if I were to say "it's easy to find a blue ray rip of Captain America" (this is the whole of my reference, exactly in these words) then I would be guilty of copyright infringement? Because that is one of the lines in the sand. I don't see it. But telling you what to Google is nearly that.
I hope that's the case, and I didn't read the legal text, but how would you protect yourself against that? Would we have to keep tamper-proof screenshots (or archive.is-like snapshots) for each external link posted?
Screenshots are terrible proof. They were however used in a Swedish piracy court case many years ago. That led to someone building the "proof machine"[1] which created screenshots of BitTorrent clients with any IP you entered. Try it:
[1] http://lekplatsen.org/bevismaskinen/
[1] http://lekplatsen.org/bevismaskinen/
See also: https://en.wikipedia.org/wiki/False_evidence
It could bring you into more problems than you started with.
It could bring you into more problems than you started with.
Yes, this was a FTL proof of concept that was meant to show how worthless screenshots are as evidence.
Cryptographic, digital notaries. You could do screenshots and/or HTML pages. It's how I've always done it when I thought what's on a page would be significant and need proof later on.
https://en.wikipedia.org/wiki/Trusted_timestamping
EDIT: There's also newer ones that pull the site for you like a MITM to do what we're saying. Startups come and go, though, so I recommend scripted or manual scraping combined with long-running notary who will have evidence when trial happens. :)
https://en.wikipedia.org/wiki/Trusted_timestamping
EDIT: There's also newer ones that pull the site for you like a MITM to do what we're saying. Startups come and go, though, so I recommend scripted or manual scraping combined with long-running notary who will have evidence when trial happens. :)
While we could implement a system to have tamper proof verification of stuff that's been archived, how do you prove that the archive (snapshot) is what was actually at the target at creation time and hasn't been modified before archival?
I'm thinking in purely technical terms here, and that I can easily argue that such evidence is inadmissible, unless there's a certain number of independent, trusted snapshot services that would archive each link too, and allow one to compare the decrypted archive. To achieve that, one would probably want to use an indirection for linking so that such archives do not have to archive everything that exists, but just those that go through said indirection.
Then, the last question is how many independents you need to put trust in the verification, considering that motivated attackers could circumvent, say, the 3 most used archiving services. Or you could bind the archival of a link in a federated number snapshot services to a consensus algorithm. Then you'd ask yourself how many networks (which consist of multiple services) you'd trust.
I'm thinking in purely technical terms here, and that I can easily argue that such evidence is inadmissible, unless there's a certain number of independent, trusted snapshot services that would archive each link too, and allow one to compare the decrypted archive. To achieve that, one would probably want to use an indirection for linking so that such archives do not have to archive everything that exists, but just those that go through said indirection.
Then, the last question is how many independents you need to put trust in the verification, considering that motivated attackers could circumvent, say, the 3 most used archiving services. Or you could bind the archival of a link in a federated number snapshot services to a consensus algorithm. Then you'd ask yourself how many networks (which consist of multiple services) you'd trust.
TLSNotary is one approach: https://tlsnotary.org, although I'm not certain it provides trusted timestamps.
It doesn't, but you can feed the content through a digital timestamping system
>how do you prove that the archive (snapshot) is what was actually at the target at creation time //
It's not what was at the sender though, surely, it's what gets sent to the client. Each client receives different content (at some level).
If I paste a 'forbidden' link to my blog that I've never followed, and no-one ever views the page, surely that's not a crime??
It's not what was at the sender though, surely, it's what gets sent to the client. Each client receives different content (at some level).
If I paste a 'forbidden' link to my blog that I've never followed, and no-one ever views the page, surely that's not a crime??
> Each client receives different content (at some level).
Exactly, and now imagine how easy it is for someone motivated and with the right resources to meddle with that.
Similarly, it's hard to prove a machine was used by its user to consciously navigate to an illegal link. There's too much automatism on the web and on networked machines, plus if we consider link shorteners, there are too many explanations against that would not allow admitting evidence like machine-x-owned-by-mike-miller-accessed-mp3forfree-artist-album-2016.pdf.
It's the equivalent of me walking in a street where I didn't know drugs or weapons or humans were sold, and being arrested for just walking through there. In real life you have some clues where not to go, especially if you're from the town, but on the internet it's too easy to have your machine load a random illegal link or search alarming terms on Google without your consent.
Exactly, and now imagine how easy it is for someone motivated and with the right resources to meddle with that.
Similarly, it's hard to prove a machine was used by its user to consciously navigate to an illegal link. There's too much automatism on the web and on networked machines, plus if we consider link shorteners, there are too many explanations against that would not allow admitting evidence like machine-x-owned-by-mike-miller-accessed-mp3forfree-artist-album-2016.pdf.
It's the equivalent of me walking in a street where I didn't know drugs or weapons or humans were sold, and being arrested for just walking through there. In real life you have some clues where not to go, especially if you're from the town, but on the internet it's too easy to have your machine load a random illegal link or search alarming terms on Google without your consent.
The answer is mostly in the link I gave you. Here's an implementation:
http://www.surety.com/digital-copyright-protection/prove-own...
You publish the hash chains with signature in places you can't retract. They use New York Times for instance. Far as their sigs, they can use one or more HSM's. One or more atomic clocks plus high-quality NTP for timing. Open-source client checks all of it right after it happens, maybe keeping local copy. Every other aspect is just standard INFOSEC.
I dont have time to answer the last question right now. Off to work. :(
http://www.surety.com/digital-copyright-protection/prove-own...
You publish the hash chains with signature in places you can't retract. They use New York Times for instance. Far as their sigs, they can use one or more HSM's. One or more atomic clocks plus high-quality NTP for timing. Open-source client checks all of it right after it happens, maybe keeping local copy. Every other aspect is just standard INFOSEC.
I dont have time to answer the last question right now. Off to work. :(
But the last one is the most interesting to finally be able to trust the results. It's the same problem as faced in distributed systems, but in, say, NoSQL databases I haven't heard anyone consider the possibility of 4 of 6 members of a quorum to be undermined, and how to detect that.
Hash it, store the hash in a blockchain: https://www.gwern.net/Timestamping (One of the few things blockchain stuff is useful for)
Yes, but how do you conclude without a doubt that what was hashed hasn't been tampered, leading a site to believe it's legal or malware-free content, while it actually isn't, and you've just been fed a shadow version of the real thing. We can reach for consensus algorithms, but ultimately without something like Van Jacobson's Content Centric Networking, it will be very hard to prove with enough confidence for a judge to make a ruling.
1. Because the hash is in the blockchain, certificates cannot be created retroactively.
2. The notary could make their archive public, so that any interested party could go through and verify that it is legit.
3. By using many different notaries the chance of any one of them being bad would be reduced.
2. The notary could make their archive public, so that any interested party could go through and verify that it is legit.
3. By using many different notaries the chance of any one of them being bad would be reduced.
Read the legal text please – the article that was submitted is basically full of lies.
Read now. The ruling acknowledges the target is mutable, but it also says that the poster of a link on a page that's for-profit must check the target content. However, I cannot find anything how one should prove it was legal at time of linking. The only sensible thing I can find is that once notified a link has to be taken down. Did I miss something?
Perhaps it would work the other way around? The prosecutor has to positively prove that when you established that link, it was pointing directly at illegal content (and based on the context of your linking, that you knew it was illegal).
Assumption of innocence, are you mad? /s
Next you'll be wanting trials instead of summary rulings.
Next you'll be wanting trials instead of summary rulings.
Making money is the point here. It's not illegal for me to point at a guy selling bootleg DVDs on the streets of NY. But if you pay me to show you where you can buy bootleg DVDs in NY, I'm pretty sure I'd be found to be at least an accessory.
It may be bad for the internet, but it seems fair and also consistent with earlier EU rules, such as the "right to be forgotten". It places an extra burden on the big, commercial sites to remove links (or stop linking on the first place) to content that is considered illegal in the EU.
Of course, that may be considered bad for the internet, because most people, as long as they are not the victim, like to see leaked nudes and download stuff for free, and the internet has grown in no small part because of this.
I think that now that the internet is mature as it is, some limits are necessary to keep things fair and protect people from the mob, and the internet will live on nonetheless.
Like the Norwegian piece the other day about the famous Vietnam war picture that Facebook considered nudity this is yet another signal that local law and culture needs more consideration by the big web publishers.
Of course, that may be considered bad for the internet, because most people, as long as they are not the victim, like to see leaked nudes and download stuff for free, and the internet has grown in no small part because of this.
I think that now that the internet is mature as it is, some limits are necessary to keep things fair and protect people from the mob, and the internet will live on nonetheless.
Like the Norwegian piece the other day about the famous Vietnam war picture that Facebook considered nudity this is yet another signal that local law and culture needs more consideration by the big web publishers.
> I think that now that the internet is mature as it is, some limits are necessary to keep things fair and protect people from the mob, and the internet will live on nonetheless.
The problem is, if you have a different internet in the US than you do in Europe, China and Saudi Arabia then it isn't the internet anymore. There is no way to do that and still allow people in Europe to communicate with people in the US -- otherwise they could just forward each other the censored information (and set up automated systems to do the same).
The more you censor the more popular the countermeasures become until either everyone is using them and the censorship is completely ineffective, or we're all living in the sort of communist police state necessary to prevent that.
And there is no point in engaging in censorship that is completely ineffective, so what you're really proposing is the police state.
The problem is, if you have a different internet in the US than you do in Europe, China and Saudi Arabia then it isn't the internet anymore. There is no way to do that and still allow people in Europe to communicate with people in the US -- otherwise they could just forward each other the censored information (and set up automated systems to do the same).
The more you censor the more popular the countermeasures become until either everyone is using them and the censorship is completely ineffective, or we're all living in the sort of communist police state necessary to prevent that.
And there is no point in engaging in censorship that is completely ineffective, so what you're really proposing is the police state.
Sure, we shouldn’t have different internets for different countries.
But instead of applying US law globally, we might want to instead apply EU or Chinese law globally.
It can’t be that laws that only 300 million people can vote for are applied to billions of people.
But instead of applying US law globally, we might want to instead apply EU or Chinese law globally.
It can’t be that laws that only 300 million people can vote for are applied to billions of people.
The answer is not to argue over whose censorship laws to apply, the answer is to not have government censorship.
Copyright is one form of government censorship.
Copyright is supposed to be a temporary monopoly granted by the demos, the reason for which is to enrich the space of published artistic works.
It's so sad to see it perceived as an imposition by authorities. Not wrong, just sad.
It's so sad to see it perceived as an imposition by authorities. Not wrong, just sad.
The "temporary" part seems to have disappeared, at least in the USA. Very, very little material enters the public domain every year. The rules about copyright (instant when fixed in tangible form, long lasting, can last for years after an author's death) make it almost impossible to tell based on the material itself, whether that material is copyright. I have to conclude that today's US copyright is an imposition by authorities, albeit a subtle one.
But you should look up the history of copyright. The Licensing of the Press Act of 1662 (https://en.wikipedia.org/wiki/Licensing_of_the_Press_Act_166...) was essentially a censorship law. Copyright is censorship of a sort.
But you should look up the history of copyright. The Licensing of the Press Act of 1662 (https://en.wikipedia.org/wiki/Licensing_of_the_Press_Act_166...) was essentially a censorship law. Copyright is censorship of a sort.
I, along with most commentators it seems, consider the shift to give rights to authors (over a private, closed, cabal of printers) in the Statute of Anne to be the shift to copyright of a form recognisable today.
The Licensing Act you refer to was a censorship law, not a copyright law; it IIRC doesn't protect authors rights nor give them primacy as the creators of [copyright] works.
The Licensing Act you refer to was a censorship law, not a copyright law; it IIRC doesn't protect authors rights nor give them primacy as the creators of [copyright] works.
> Copyright is one form of government censorship.
But copyright is a social contract. It needs people to believe in it far more than it needs people to be forced to follow it at gunpoint.
Aggressive copyright enforcement is counterproductive because it trades a small increase in the cost of defecting for a large increase in public disrespect for the social contract which is what causes people to be willing to defect.
But copyright is a social contract. It needs people to believe in it far more than it needs people to be forced to follow it at gunpoint.
Aggressive copyright enforcement is counterproductive because it trades a small increase in the cost of defecting for a large increase in public disrespect for the social contract which is what causes people to be willing to defect.
I'd rather the laws of a country which enshrines freedom of speech to a greater degree than any other be the set of rules governing the internet than the laws of a place where you can be fined for jokingly giving a Nazi salute.
Yet I’m able to make a Nazi salut online, but not show my breasts?
Your "freedom of speech" is still only allowing what your culture wants.
The internet is something where all cultures collide, so giving any one culture control is just stupid.
Your "freedom of speech" is still only allowing what your culture wants.
The internet is something where all cultures collide, so giving any one culture control is just stupid.
Clearly, US law allows bare breasts as speech.
Yeah, publications like Gawker media (which had much more style than geenstijl.nl) can vouch for US freedom of speech...
Gawker disobeyed court orders and obtained illegal goods. No one could survive that.
>sort of communist police state //
What's communist about this?
What's communist about this?
> What's communist about this?
Soviet Russia, East Germany, China. Now name a libertarian police state.
Soviet Russia, East Germany, China. Now name a libertarian police state.
>It places an extra burden on the big, commercial sites to remove links (or stop linking on the first place) to content that is considered illegal in the EU.
Why did you insert the word "big" in front of "commercial sites"? There is no such qualification in the court's ruling.
Every small blogger who makes a little money through ads now has an obligation to check whether or not the owner of every single linked page owns the copyrights to the content they publish (or will publish on that page in the future).
I have no idea how anyone could possibly perform these checks. Do you ask the linked site for proof? But if anyone is going to find a way through this legal nightmare it's going to be the very biggest players with big legal departments.
Why did you insert the word "big" in front of "commercial sites"? There is no such qualification in the court's ruling.
Every small blogger who makes a little money through ads now has an obligation to check whether or not the owner of every single linked page owns the copyrights to the content they publish (or will publish on that page in the future).
I have no idea how anyone could possibly perform these checks. Do you ask the linked site for proof? But if anyone is going to find a way through this legal nightmare it's going to be the very biggest players with big legal departments.
>Every small blogger who makes a little money through ads //
FWIW you don't usually, in copyright, have to make money for a site to be considered commercial. Depriving another entity of the ability to fully profit can be enough, or even advertising something you're not directly profiting from.
FWIW you don't usually, in copyright, have to make money for a site to be considered commercial. Depriving another entity of the ability to fully profit can be enough, or even advertising something you're not directly profiting from.
> now has an obligation to check whether or not the owner of every single linked page owns the copyrights
That isn't what the ruling says: you can still assume content is legal. Only when you know (or "should have known") it isn't do you need to unlink it.
In this case, geenstijl.nl (which is a professionally-run news site that likes to troll and stir up anything to get traffic) repeatedly linked to leaked playboy pictures uploaded somewhere on the internet. There was no way they could claim innocence. They expressly and repeatedly decided to link content they knew was illegal and would get them a ton of traffic.
That isn't what the ruling says: you can still assume content is legal. Only when you know (or "should have known") it isn't do you need to unlink it.
In this case, geenstijl.nl (which is a professionally-run news site that likes to troll and stir up anything to get traffic) repeatedly linked to leaked playboy pictures uploaded somewhere on the internet. There was no way they could claim innocence. They expressly and repeatedly decided to link content they knew was illegal and would get them a ton of traffic.
>That isn't what the ruling says: you can still assume content is legal. Only when you know (or "should have known") it isn't do you need to unlink it.
That is simply incorrect. Here's what the ruling says:
When hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published.
"Carry out the checks necessary" means that you cannot simply "assume content is legal".
That is simply incorrect. Here's what the ruling says:
When hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published.
"Carry out the checks necessary" means that you cannot simply "assume content is legal".
> Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling.//
Only because "Google" chooses not to. Execs in control of what Google links to know that it links to illegal/tortuous/immoral content -- leaked nude images, say -- they make money from advertising alongside those links and by inclusion of such links so they can provide a 'comprehensive' search.
Google will get a pass though, too big to prosecute. The result of that is there will always be a place to find such content.
It's inequitable -- and hence contrary to democracy and the rule of law -- to convict someone of providing a link without also convicting search engine execs whose SE provides the same link. It also makes the process futile.
Only because "Google" chooses not to. Execs in control of what Google links to know that it links to illegal/tortuous/immoral content -- leaked nude images, say -- they make money from advertising alongside those links and by inclusion of such links so they can provide a 'comprehensive' search.
Google will get a pass though, too big to prosecute. The result of that is there will always be a place to find such content.
It's inequitable -- and hence contrary to democracy and the rule of law -- to convict someone of providing a link without also convicting search engine execs whose SE provides the same link. It also makes the process futile.
I think you've misunderstood - Google, I am sure, is aware that it probably links to illegal content. But it has no way of knowing what is illegal or not - so it would not meet those conditions. It's a completely different situation to the case in question.
You don't think Google execs know for sure that Google links to copyright infringements. There's zero chance of that IMO. Criminal law only requires "beyond reasonably doubt", civil law (torts liked copyright infringement) only needs a "balance of probabilities".
Those people have the same way of knowing what's unlawful or illegal or tortuous as the rest of us; actually they're more likely to be able determine it IMO.
Google link to iTunes, iTunes provides a means (CD ripping, yes, for real) to circumvent UK copyright law ... go on tell me Google's lawyers don't know this essential basic of UK copyright nor that you can find iTunes (designed for copyright infringement!) on Google.co.uk.
It's not like any of this is being done to serve the public interest, it's solely focused on narrow commercial interests.
Those people have the same way of knowing what's unlawful or illegal or tortuous as the rest of us; actually they're more likely to be able determine it IMO.
Google link to iTunes, iTunes provides a means (CD ripping, yes, for real) to circumvent UK copyright law ... go on tell me Google's lawyers don't know this essential basic of UK copyright nor that you can find iTunes (designed for copyright infringement!) on Google.co.uk.
It's not like any of this is being done to serve the public interest, it's solely focused on narrow commercial interests.
They can moderate sites before adding them to a search index. In newspapers usually there is an editor who checks articles before print, why not make google do the same? So there will be no illegal and immoral content and the users will feel safer. Google is very rich and therefore can afford moderation, they just don't want to respect european law.
The decision said that a link to illegal content can be illegal in itself when 1. it's done for monetary purposes, and 2. when the person creating the link was aware of the illegal nature of the content being linked.
But who would have doubted about that? Did you really think you could create links to illegal content for money and get away with it?
On the other side, it clarifies the fact that a link to illegal content will not be illegal if it's done for free, or if it's done without knowing the illegal nature of the content being linked.
To quote the decision : "it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed."
From my perspective, it's a good decision.