> Europe's highest court is considering whether every hyperlink in a Web page should be checked for potentially linking to material that infringes copyright, before it can be used.
A hyperlink is just an address of some kind that client software interprets in a certain way allowing users to easily send network packets to it. Whatever response comes back to a request directed at that address is entirely determined by whoever controls the address, and outside the control of the publisher of the hyperlink.
So if one published, say, a phone book, with all of the addresses and phone numbers of consenting residents in a city, when a reader dials one of those numbers, or sends a letter to one of those addresses, it's entirely possible that a reply could come back containing copyrighted material. Should the publisher be required to check every address and phone number for such copyright-violating replies before publishing the phone book?
The response that the controller of an address sends (if any) to requests sent to it may change from request to request, for any reason at all. Would it be illegal to publish a hyperlink to an HTTP URL that has a 50% probability of responding with copyrighted material? 10% probability? 1%?
> Whatever response comes back to a request directed at that address is entirely determined by whoever controls the address, and outside the control of the publisher of the hyperlink.
It's actually even worse than that. The content can change depending on who is making the request, and can also change from one request to the next. There is absolutely no guarantee that if you check the content of a URL at one time and find that it doesn't infringe any copyrights (and how would you know anyway?) that the next time you check, or the next time someone else checks, that the content won't be different.
That the court would even consider this is an indication of deep and profound ignorance on their part.
On the other hand, and not that I'd like to be sued for placing links, if the link in my page is something like <a href="ftp://thepiratebay.com/avatar.mp4">Avatar Movie Download</a>, the argument that the page had the text of the Holy Bible in it last time I checked might not be very convincing.
I think that's more where this legislation is coming from. Some people have built a business on aggregating links or embeddings of copyrighted material and those sites always use the legal defense of "we don't host any of the content so it's not our problem." I imagine this is very frustrating to copyright holders, so it's reasonable that they would seek redress of some kind.
Of course, making any copyright-infringing link illegal would be far too heavy-handed, but I don't think that's a likely decision here.
If someone published only the names and addresses of known drug dealers in a phone book, the publisher still wouldn't be responsible for any drug deals.
Aiding and abetting is a federal statute in the US, so I don't think that would be considered 100% OK. The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit [specify crime charged].
PS: A more interesting question is if saying we don't host Hollywood crap if you want that go to [the pirate bay] without linking to any specific material.
The elephant in the room is that Google actually do host copyrighted content on YouTube (which is its primary use case), but they're so big they're untouchable.
Let's go after the big guys before the little guys, eh?
Have you ever used the Pirate Bay? The links there are actually magnet links (i.e. BitTorrent links) and they just look like random gibberish.
What you get on the Pirate Bay is descriptions of these links. So it's more like:
<a href=magnet:some-random-string>Avatar HD</a>
Trick is, that description may or may not actually be true. The content is submitted by PB users. The PB, AFAIK, doesn't actually vet this information. And, BTW, not all of the content linked to on the Pirate Bay is actually pirated. You can find Linux distros there, for example.
Have I ever used the Pirate Bay? Why, it's illegal! Have you ever used the Pirate Bay?
Anyway, I crafted my link for comedic value rather than "realism", and then my point was that someone could put, on a web page in their own full control, a link that points to pirated copyrighted material beyond reasonable doubt. You talk about the difficulty of a site with user-submitted content to place limits on what that content can be, which is relevant if someone proposes draconian copyright enforcement measures, but it does not refute my point. As to PB having non-pirated content - sure, and the red light district probably has businesses that sell food, but PB is like my link example in that nobody would buy a claim that its main use isn't pirating copyrighted content.
Again - perhaps it's reasonable to have laws letting people get away with it because any alternative laws are worse (or we could have no copyright law, etc.) All I'm saying is, you don't have to be completely ignorant to say, hey, there are guys who don't only piss into the swimming pool but they do so standing on the springboard, and how about we discuss ways to stop them.
Also, and somewhat independently from the above, you mention in a sister comment that you're a filmmaker. That's interesting - I didn't know you were - and I guess I'm an aspiring filmmaker myself. But that is different from being dependent on the income from filmmaking. Someone trying to live off their own films is in a pretty tight spot right now because basically they compete against a near-infinite amount of de-facto free-as-in-beer content. You mention that Hollywood is alive and well but many in Hollywood disagree, it hurts them a lot - as to someone with a smaller budget, making a profit is unlikely. I don't know how matters could be better, though perhaps if it were illegal to sell/give up the authors' rights, and if we'd be forced to pay per view or some such, and the enforcement of it all was practical, things would be better. Or they might have been worse, I dunno...
None of this is any excuse if the intent is so clearly to profit illegally off of other people's content. Trying to paint Pirate Bay as this altruistic organization that just wants to distribute some Linux distros is such bullshit. The information wants to be free brigade always seem to overlook the tons of sleazy ads and malware that accompanies all of these file sharing sites.
Well, large corporations using political influence to extend copyright terms effectively forever to prevent works from ever entering the public domain against the express intent of the Founders (at least in the U.S.) aren't exactly the white knights in this story either.
Look, I'm a filmmaker. I believe in copyright (for limited terms), and I believe in using the law as a mechanism to enforce the interests of copyright holders. But making it a crime to link to a page that contains unlicensed material is going way too far IMHO.
(BTW, the sleaze and malware make pretty effective deterrents for the general public to use the PB. You may have noticed that Hollywood is still in business despite the fact that the PB is still operating.)
> Well, large corporations using political influence to extend copyright terms effectively forever to prevent works from ever entering the public domain against the express intent of the Founders (at least in the U.S.) aren't exactly the white knights in this story either.
Exactly this. Get back to me when we have a sane copyright regime in the US and, for that matter, the rest of the world. Until then, pardon me if I'm not bothered when people pirate content.
Profiting off illegal content is already illegal by itself and all these special cases should be left to courts to decide instead of throwing around overly broad blankets
And this case is exactly to provide a framework for lower courts to decide intent. In fact, it was a court that asked this question to the CJEU to be able to judge a specific case. It's much better to have clear rules what is allowed and what isn't than operating in a grey area and being dependent on courts deciding in your favor without being able to asses the risk beforehand.
> Profiting off illegal content is already illegal by itself
That is not so easy and depends on your definition of "profiting".
Just like someone's phone number could be replaced by someone else, now you're calling a drug dealer instead of your grandmother, who is to blame then? Same thing can happen to URLs. Every time I let a domain of mine expire (well not EVERY time, but sometimes) some company buys it out and stuffs it up with advertisements.
For a different spin on that example, say you sold a directory of crack dealer's phone-numbers called 1800-dragon-chasers. It seems clear its aiding in a criminal enterprise and not a totally innocent knowledge product. I wonder if you could be charged for that.
Right. But the point is that laws exist that do apply to your scenario; the law would have to demonstrate that it's aiding in criminal enterprise and use legal methods (maybe even an injunction).
However, newspapers let people place personal ads: "Pottery enthusiast seeks friends. 555-1212, or write to 1010 Binary Lane."
Should the newspaper have to call that number, and write to that address, and determine (how?) that nothing shady's going on there?
The answer seems pretty clear.
In the absence of outright governmental/dinosaur malice, no reasonable person who understands technology would ever propose shifting the burden to content creators/publishers in the default case. If there's a criminal investigation, they're already required by law to be helpful.
> However, newspapers let people place personal ads: "Pottery enthusiast seeks friends. 555-1212, or write to 1010 Binary Lane."
I recall reading a story from a guy living in England during the Amiga years.
At one point he learned that he could place a personal ad in the back one of the many magazines sold, offering to exchange copies if he was mailed floppies.
At the height of this activity he got so much mail he had to buy extra drives, and spend whole weekends swapping floppies.
And this is sending floppies via physical mail.
If you want a contemporary equivalent i hear there are people operating a "sneakernet" based on external HDDs over in Cuba.
Heck, i have personally seen people bring duffel bags of CD-Rs to LAN parties. And this was back when most used modems to get online.
Sure, but the court isn't being asked to consider a personal ad page or comment thread, or a case in which the copyright status of the linked-to material was remotely uncertain. There are other precedents in favour of publishers to fall back on in those circumstances.
What's actually brought the case is a situation where (i) the publisher had good reason to believe the material was infringing when they initially published the link (ii) the entire purpose of running the story was to encourage people to access the infringing material and (iii) when the copyright holder objected and got the original material taken down, the publisher gleefully republished an alternate link to the same material. They weren't posting personal ads for pottery enthusiasts, they were posting "if your drug dealer just got busted then try calling these ones instead".
What they court is actually being asked to rule on is whether [intentionally] linking to unauthorised means of accessing copyrighted material can ever be a copyright violation, and if so, how wilful does the plaintiff have to prove the publisher's infringement was and should the plaintiff also have to prove other factors such as the linked-to copyright-violating site not being already well known to the public. The question concerns whether being one remove from the infringing content makes you immune from any threat of suit rather than who the burden of proof lies upon.
Sure, but we've allowed "The Content Oligarchy" to expand Copyright so ridiculously that there is a thing called "Contributory Infringement". If you enable or even don't actively inhibit someone's ability to infringe copyright then you are breaking the law.
The issue described in this article isn't the problem. It is a symptom. The problem, the disease infecting us all, is Copyright Law.
We can't keep reasoning about digital age by way of pre-digital-age analogies. The first internet pioneers have died of old age now.
It's time to stop assuming courts and lawmakers are incapable of understanding technology without brick & mortar analogies. Hyperlinks are like hyperlinks, not like phone book entries, and courts will have to rule about lawsuits like these.
You're assuming the judges in this case have an understanding of the basics of the structure of the Internet. Based on my experience with governing bodies, most still think the Internet is stored inside the blue E.
An interesting point. And in the case of using Google as a search engine, the search query essentially indicates intent. If I search Google for "pirated movies" and some links to web sites to help me get those are returned... then is Google complicit in my attempt to pirate movies? My intent is clearly to pirate movies, I am explicitly telling Google that that is my intent, and they're responding with helpful information...
(not to imply I think what these judges are considering to be good, just some food for thought.)
> in the case of using Google as a search engine, the search query essentially indicates intent. If I search Google for "pirated movies" [...] My intent is clearly to pirate movies,
I dunno, I think there are plenty of legitimate reasons to search Google for "pirated movies" other than pirating them. Maybe you want to find out whether your movie is being pirated; maybe you want to find out which movies are most pirated right now (you're doing research, or you're a journalist, or you're a sociologist, or an investor, or a police officer, or whatever); maybe you want to learn more about the law of "pirated movies"; maybe you're looking for an old blog post or newspaper article that you know contained the term, or was about, "pirated movies"; etc, etc.
In general, I think it's extremely difficult to demonstrate anything about intent or state of mind from search queries alone... you would have to provide more contextual evidence.
The Court of Justice of the EU has some of the most competent IT lawyers of the world. I am sure they already compiled a memo about the definition of "hyperlink". I'd love to see it.
What constitutes an hyperlink?
* A working `<a href="url">` HTML element? So overlay links inside YouTube videos are OK? What about <span> elements with `onclick="window.location="`?
* Anything that can point to a URL and is actionable?
* A simple URL? Would an URL in the text be considered an hyperlink? That could easily be extended to consider URLs in footnotes in printed book hyperlinks as well. (And what about EPUBs?)
* A non-dereferenciable URL? What happens if I write as normal text the SHA1 of a file I want you to have a look at? Any DHT-enabled application/protocol would be able to fetch it.
Are we basically going back to DeCSS and forbidden numbers?
PS: Firefox US English spell checker does not know about the newfangled word "hyperlinks".
The law does not need formal definitions like that. Law isn't programming, this is what nerds usually forget.
Legal definitions are usually based on common sense and the "flies like a duck, quacks like a duck, ..." principle.
A clumsy first approximation: If the purpose and intended use of the thing is to provide access to or greatly help in finding access to the infringing content, then it's "linking" to that content.
> The law does not need formal definitions like that. Law isn't programming, this is what nerds usually forget.
It is not about laws, but about experts opinions in judgments. Courts routinely hire lawyers and experts to redact very formal, technical, philosophical and nitpicky memos about a topic. The CJEU has a resident pool of such experts and they are all very qualified (and variegate in their political orientation).
Obviously those memos are not turned into law. We are talking about judgments here. But those memos are read and used by judges to inform their decisions. I would just love to get access to the memos that are surely being produced for this case.
Just because it doesn't have formal definitions doesn't mean it doesn't need them. As GP points out, the implication of the vagueness is that there will be a lot of legal uncertainty.
We absolutely don't want formal definitions for law. While it may seem like a good idea on first sight it would create more problems than it would solve. Lawmakers often forget some specific situations (or there is technical progress that wasn't taken into account) when writing the text of the law (or in this case the formal definition) but it's clear how their intent would be. Judges can decide those specific cases when they are on the table. Nobody can foresee everything.
There are many examples where case law differs from the exact wording of a law for a very good reason.
So, for example, having a service which provides a JSON file that contains a list of sites you know to be copyright-infringers, that would clearly be bad.
What if your purpose in publishing that JSON feed was to supply URLs to a content-blocker? Would that change of purpose matter?
Courts have been dealing with clever nitpickers like yourself for centuries. All of these would be hyperlinks according to the courts, and if you tried to argue otherwise you'd be told that you were trying to make a "distinction without a difference".
It cuts both ways though. A judge could easily expand the definition of what a hyperlink was beyond what is reasonable due to vagueness in the law because the "reasonable person" test takes account for the people that think changing their desktop wallpaper is "magic" performed by "computer geniuses."
Just to make things clear, nothing is decided yet. What is debated in this thread is the very same question the court will answer. For example, they are being asked to asses:
> is it important whether the ‘hyperlinker’ is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?
Which in fact does included the finer details of changing content after the link was published. But that isn't really important to this specific case: The link pointed to the very same content all the time and was labelled with the content on the linking website. Even if they decide that this link was illegal that does not necessarily imply that any link going to infringing websites is a law violation (for example, if the content changed later on or different content is served to different users).
That's what courts are there for: They are asked question of legality and answer them. We don't know yet how they will decide this time and it's wasted time to mock judges for not knowing anything about technology before actually seeing the ruling they make. The CJEU has a pretty good track-record so far.
I'm not a fan of the EU at all, and I'm not a fan of unnecessary government regulation. However, this article is FUD.
American readers tend to assume the worst about government regulation of the web, but a charitable reading suggests a pro-copyright ruling might not be completely ridiculous. They'd have to draw a tight boundary to ensure they only cover blatant cases (like the blog which linked to leaked photos), and avoid leaving all users open to accusations of copyright infringement. If they
- limited it to cases where it was clear the intent was to link to copyrighted content the owner expressly didn't want to be linked to (assuming that if the owner hasn't expressed this, content posted online is, by default, OK to link to)
- added exclusions for a) old links, b) user-submitted links, c) links to content which changed
it wouldn't be an unreasonable law. I don't know if the final decision will be that sensible, but I wouldn't rule it out. The cookie regulation wasn't especially onerous and probably helped educate users about the legitimate role of cookies.
I should also point out that this is a judicial decision, not something created by the legislature. The court has to decide how to apply the existing law to this case, and in doing so establishes new case law.
(I made this comment as I don't think the EU can be criticised on the grounds of producing ill-thought-out regulations. As technocratic bureaucracies go, the EU is efficient and works well. Instead, I'm opposed to technocracy on principle, and I think 30-50 years out the EU will have evolved into inefficient Brezhnevism).
Ugh. For the last time. A hyperlink is not a special kind of descriptor.
You could very easily write a browser plug-in that would take addresses of the form: "there is a website on the Internet that is named example.com and on the server upon which example.com runs, there is a directory named /files, within which there is a regular file named index.html".
See ? So it's just speech. It's not special speech, it's not interesting speech, it's not strange computer speech. It's just plain old speech.
I have been trying, for 14 years[1][2] to erase this distinction with the thought experiment of the "natural language hyperlink" and I had hoped that this "issue" would just disappear.
That's exactly the point. I would be very surprised if the court would see a difference between your description and an a-tag. But your description might still aid copyright infringement and it's the question whether the speaker should be liable for that or not.
If I'm standing on the market square and reading today's newspaper out loud that is just speech. But it's also copyright infringement.
This case has nothing to do with the specific form of a link. The question is whether one can infringe copyright by giving a very specific (and automatically executable) description on how to do so.
This proposal makes the EU cookie law (https://www.cookielaw.org) seem totally reasonable by comparison.
My first question is, what impact would this have on the European economy over time? Total devastation? Or would it ultimately amount to just a bunch of fines and legal fees that only the major tech companies can afford to pay, effectively locking out competitors?
In other words, would this merely be horrible for consumers, or would it also set the entire European economy back half a century?
Absolutely horrible for consumers. Not sure what it would do to the European economy, but at best it would have no effect on it. There'd be no good side to this happening.
Somebody has to provide business for all those lawyers sending notices to small site owners. Soon Getty will be able to sue not only for having an Awkward Penguin meme on your site [1], but also for linking to any social media site that might have images of Awkward Penguin on it.
And then they'd have to prevent you from visiting sites outside the EU that aren't following their stupid rules. So then you need a "great firewall of Europe".
No one can be dumb enough to destroy the very basis of the entire web. Perhaps it will just be annoying like clicking on a link requires an alert telling the user that the destination may not be acceptable, like the cookie alert but more intrusive. I wonder how this applies to JSON or XML links?
Who wins if the web loses? Instead of discovery via hyperlinks, publishers could be forced to distribute via Facebook Instant Articles or Apple News, which would perform copyright clearance services. TPP/TTIP bring new penalties and many changes related to copyright, https://www.eff.org/deeplinks/2015/12/how-tpp-will-affect-yo...
> No one can be dumb enough to destroy the very basis of the entire web.
That's a pretty optimistic thought. I am often amazed at the ability of people to do just that. Witness the battle against search engine linking to newspapers and the amazing leaps in logic that generated.
Or what if I link to a site that links to infringing content? I'm not allowed to share a link to www.illegalstuff.com, but can I link to www.totally-legal.co.uk, which has a link to illegalstuff.com? What if totally-legal.co.uk has a 302 redirect to illegalstuff.com? It totally-legal.co.uk an illegal link, even if that actual site doesn't contain illegal stuff?
I can't wait for the day when our legislative bodies actually understand how the technology around them works. Maybe then we can avoid idiotic discussions like the ones surely going on in this courtroom right now.
I am terrified of that day. The only reason we progress in IT is that no person in authority understands tech, so they can't make stupid rules that stops us.
Imagine if they had been competent enough to make the rule that all source code had to be stored in a repository, and that each file had to be locked to prevent concurrent modification - we would never have progressed from RCS.
It won't happen until "those people who actually understand how the technology around them works" decide to become legislators. Are you quitting your engineering job to run for office?
It's irrelevant. It would happen even if everyone involved had a CS PhD.
Note that there's a reason this idea is being discussed, and it's not that the Internet is broken and needs to be fixed. The Internet works fine. But there are groups of people who want to make money off it, and they have enough resources to (attempt to) buy legislation that would favor their preferred business model.
I doubt that will ever happen. What I'm curious about though is the extent stupidity or greed of a few can kill freedom and creativity of the many without the masses revolting. I guess it depends on a large number of factors, including existing culture, and how slowly the water is heated before the frog realises it is boiling...
By the same logic, every addressing system that might lead you to pirated material should also require the same checks. What if I print out a copy of a poster I don't have permission to use and then give you the GPS coords where you can go view it?
What if I put said poster on the outside of my house and then share my home address?
What if a band is playing a set in a pub and wants to advertise beforehand? Do the need to make sure the pub in question is not breaking any copyright laws before they can include the location on their marketing material?
"The Court itself is composed of 27 judges, one from each member state. Only ten of the current judges (that’s 37 per cent) have served in a domestic appellate court or above within their member state." (2012) -- http://blogs.lse.ac.uk/europpblog/2012/03/07/european-court-...
What do search engines like Google think of this proposal, e.g. would web search be less useful because of lost PageRank signals, or would web search be more in demand because there would be no other way to find web pages? For that matter, how would search engines discover new web pages if people are reluctant to link to new pages?
Search engines could license and distribute selected content, under a revenue-sharing arrangement with the publisher. Those fighting against links could lose all the advantages of decentralized distribution and could be forced into centralized distribution channels under non-negotiable terms.
The fact that the court is even considering this is an indication of deep and profound ignorance on their part. There is no binding at all between URLs and content. A web server can serve different content for the same URL on every single request. In fact, most URLs on the web today are like that.
It's their job to consider this as they were asked to answer that question. In the case we are talking about, the content was the same for every request and the linker knew what they were linking to. They would be doing a pretty bad job if they would not think about whether this fact changes anything for at least some cases.
What you answered may as well be their answer. We have to wait and see.
> In the case we are talking about, the content was the same for every request
But (by my understanding) the court is not ruling narrowly on this particular case, it is ruling broadly on linking to unlicensed content in general.
> and the linker knew what they were linking to.
How do you prove that? In particular, how do you prove that someone who links to a page knew that the page contains unlicensed content at the time they produced the link?
It might be possible to prove it in some very particular circumstances, but how do you prove it in general?
Yes, they are going to answer the question in general including the points you brought up. Just categorically denying any liability for links without thoroughly thinking about those points is shortsighted.
Just because in some cases it would be stupid to rule against the linker doesn't mean that it wouldn't be the right thing in other cases. Saying linking in general should never result in violation of the law because <insert specific situation here where it would be crazy that does not always apply> is disingenuous.
A hyperlink is just an address of some kind that client software interprets in a certain way allowing users to easily send network packets to it. Whatever response comes back to a request directed at that address is entirely determined by whoever controls the address, and outside the control of the publisher of the hyperlink.
So if one published, say, a phone book, with all of the addresses and phone numbers of consenting residents in a city, when a reader dials one of those numbers, or sends a letter to one of those addresses, it's entirely possible that a reply could come back containing copyrighted material. Should the publisher be required to check every address and phone number for such copyright-violating replies before publishing the phone book?
The response that the controller of an address sends (if any) to requests sent to it may change from request to request, for any reason at all. Would it be illegal to publish a hyperlink to an HTTP URL that has a 50% probability of responding with copyrighted material? 10% probability? 1%?