The internet is a web of links. Those links take us to content that may be interesting, informative, amusing, titillating, shocking or obscene. That content is hosted all over the world. The links may appear on websites. They may appear in Facebook posts. They may appear on Google search results pages. If you can’t link, the internet is broken. So much, so obvious.
The internet is full of content protected by copyright. Some of that appears with the consent of the copyright owner. And some of that content appears without such consent and infringes copyright. Which takes us to the case of Playboy, a Dutch TV presenter and the European Court of Justice in Luxembourg via Australia and the Netherlands.
The case of GS Media involves a Dutch TV presenter called Britt Dekker. She did a photo shoot for Playboy magazine. Some of the photos from that shoot were made available from an Australian site before being published in Playboy. A Dutch website called GeenStijl published links to that site, directing individuals to the infringing content. Playboy got upset, got the Australian site to remove the photos and sued GeenStijl in the Netherlands.
The Dutch courts tried to work it out, but in the end referred the matter to the European Court of Justice to decide whether GeenStijl publishing such links to infringing content amounted to copyright infringement.
So, this is when you want the court to say, “Yes, it does” or “No, it doesn’t.” Only courts (like some lawyers) rarely say that. They say, “It is complicated”.
I’m going to try and make it as clear as I can:
Is linking to infringing content a breach of copyright?
Yes, if the content is not otherwise freely available in the same form elsewhere with the consent of the copyright owner and the person publishing the links knew or ought reasonably to have known that the content being linked to was infringing.
How would you know whether content is infringing?
Well, if the copyright owner told you in a lawyer’s letter you would know (might be a bit late at this stage). Or if you asked the copyright owner you would know (impractical most of the time). And if you make a profit out of posting the hyperlinks, it will be presumed that you know. So not that helpful, I’m afraid.
But doesn’t that mean that Google infringes copyright with its search results?
You might think so, but no. Whilst, on occasion, Google’s search results point to infringing content, and Google makes a profit from its search results pages, the presumption that it knows the content is infringing will be rebutted by Google saying that the publishing of the links is an automated process and as soon as it is made aware that links point to infringing content it removes the links in accordance with US legislation called the Digital Millennium Copyright Act.
In short, Playboy won. GreenStijl lost. The photos of Britt Dekker were eventually published. And, thankfully, Playboy didn’t break the internet.