Linking To Pirated Content Is Not Copyright Infringement, Says EU Court Preliminary Ruling
In what may turn out to be a landmark case, the Advocate General Melchior Wathelet has advised the EU Court of Justice that linking to copyrighted material that is already available to the public cannot be seen as copyright infringement under the European Copyright Directive. In other words, pirated content that was uploaded online without the owner’s consent (pirated content, torrents, file lockers content, etc.) may be legal under certain circumstances.
This advisory opinion comes into a preliminary ruling requested by the EU Court of Justice in the case of Sanoma Media (Playboy) vs. GS Media BV (GeenStijl.nl).
In October 2011, a Dutch blog, GeenStijl.nl published a post linking to leaked Playboy photos, which were hosted on the file-hosting service FileFactory that allowed users to download those photos from a Playboy photo shoot.
Playboy publisher Sanoma requested the blog to take down the links at the hosting service, but the small site refused, and continued to link to other public sources where they were still available. The publication had the page taken down through the site’s ISP, with Playboy eventually ending up suing the smaller site.
As Dutch courts didn’t know how to apply the European Copyright Directive in this particular scenario, the Dutch Court asked the EU Court of Justice to rule whether these links can be seen as a ‘communication to the public’ under Article 3(1) of the Copyright Directive of the Copyright Directive, and whether they facilitate copyright infringement.
The EU Court of Justice forwarded the case to Advocate General Melchior Wathelet and asked his opinion on this matter.
This problem was theoretically already solved in 2014, when EU courts ruled that linking to copyrighted material online is not considered copyright infringement, and neither is embedding content.
However, the lawyers disputed that this case was different, as Playboy’s content was not made available by its owner; instead it was uploaded online by unauthorized third-parties without permission. Hence, the previous EU directive explanations did not apply.
Despite the content being put online illegally, the persons who commit a crime are those who upload or download the content, not the ones who link to it as an “act of communication,” said Advocate General Melchior Wathelet explaining his recommendation.
Judges as with most of these out-of-court opinions tend to usually follow advice received from experts on this matter.
Technically, most torrent sites including The Pirate Bay or Kickass Torrents, whose only reason for existing is to facilitate copyright infringement mostly link to material that’s already available elsewhere. However, in these cases, the general purpose of the site may also be taken into account.
That said, the advice is good news for news sites, bloggers and the general public, as incidentally linking to relevant copyrighted material should be allowed in most cases.
TorrentFreak reports that the Advocate General’s advice is not mandatory, but the EU Court of Justice often uses such advice as the basis of its rulings. The final verdict is expected to be released later this year.