In the European Union, link at your own risk

|The Volokh Conspiracy |

The European Copyright Directive provides that "Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works." The European Court of Justice has just ruled that a hyper-link to copyright-protected works which are "freely available on another website" but which have been made available "without the consent of the copyright holder"—i.e., a link to an unauthorized and infringing posting of a photograph, say—is a "communication to the public" and, therefore, encompassed within the copyright holder's exclusive rights, unless the links are provided (a) without "the pursuit of financial gain" by (b) 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."

The case (GS Media v. Sanoma Media [full opinion here]) involved a fairly straightforward and common situation. Sanoma Media, the plaintiff, publishes Playboy magazine.

[Playboy magazine?! I thought that we had, perhaps, seen the last of Playboy as an important force in shaping legal doctrine (see US v. Playboy Ent'm't Grp, 529 US 803 (2002) (cable TV regulation); Playboy v Welles, 279 F.3d 796 (9th Cir 2002) (trademark infringement); Playboy v. Netscape, 354 F.3d 1020 (9th Cir. 2004) (online copyright infringement); Playboy v Frena 839 F. Supp 1552 (MD FL 1993) (same); Easter Seal Soc'y for Crippled Children & Adults of La., Inc. v. Playboy Enters., 815 F.2d 323 (5th Cir. 1987) (copyright 'work for hire' doctrine)) but I guess not. The events out of which this suit arose took place in 2011, so I'm not sure whether Sanoma media is still publishing the magazine or not].

Playboy commissioned nude photographs of one Britt Dekker, to be published in the December 2011 edition of the magazine.

Defendant GS Media operates the Dutch website "GeenStijl" ("No Style"), which, the court noted, "according to information provided by that website, provides 'news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense' and which is viewed daily by more than 230 000 visitors, making it one of the 10 most visited websites in the area of news in the Netherlands." GeenStijl published a story about the photographs and included a link to the file containing the photographs that was stored at Filefactory.com, an Australian data storage repository.

The court determined that "the pursuit of financial gain" is the critical factor in determining whether or not the hyper-link is, itself, an infringement. Although the court's opinion is a bit confusing on this score - possibly a result of the translation from the original German into English - it appears that its reasoning was based on the following syllogism: (a) providing a hyper-link with actual knowledge that the linked-to material is infringing is itself infringing, and (b) if the link is provided as part of the pursuit of financial gain, "knowledge must be presumed."

Part (a) is close to an analogous principle in U.S. copyright law: If you have actual knowledge that specific content is infringing, you can be held liable for "contributory copyright infringement" if you provide a link to it.

But part (b) is a little bonkers (and quite far from U.S. principles, which do not contain any such presumption). The mere fact that a site is being operated "in pursuit of financial gain" seems like a strange proxy for having such knowledge. As Samuel Johnson once said (as quoted by the U.S. Supreme Court in the 2 Live Crew "parody" case Campbell v. Acuff-Rose), "no man but a blockhead ever wrote, except for money."

It could prove to be a sad day for the Internet in Europe.