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Europe’s top court mulls legality of hyperlinks

arstechnica.co.uk

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Re: Europe’s top court mulls legality of hyperlinks

#51

Post by moskie »

ryanlol wrote: post #19
6502nerdface wrote: post #3

> 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…

Intent is the key here.

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.)

Re: Europe’s top court mulls legality of hyperlinks

#52

Post by giancarlostoro »

lisper wrote: post #21
6502nerdface wrote: post #3

> 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…

> 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…

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.

Re: Europe’s top court mulls legality of hyperlinks

#53

Post by TrevorJ »

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?

Ridiculous.

Re: Europe’s top court mulls legality of hyperlinks

#54

Post by 6502nerdface »

moskie wrote: post #51
ryanlol wrote: post #19

Earlier quoted context omitted.

Intent is the key here.

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 informa…

> 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.

Re: Europe’s top court mulls legality of hyperlinks

#55

Post by notahacker »

mr_luc wrote: post #13
duncanawoods wrote: post #7

Earlier quoted context omitted.

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?) th…

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.

Re: Europe’s top court mulls legality of hyperlinks

#56

Post by im2w1l »

bonoboTP wrote: post #38
gioele wrote: post #2

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 ` ` HTML element? So overlay links inside YouTube videos are OK? What about elements with `onclick="window.location="`? * Anything that can point to a URL and is actionable? * A simple URL? Woul…

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 conten…

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.

Re: Europe’s top court mulls legality of hyperlinks

#57

Post by [deleted] »

avar wrote: post #45
gioele wrote: post #2

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 ` ` HTML element? So overlay links inside YouTube videos are OK? What about elements with `onclick="window.location="`? * Anything that can point to a URL and is actionable? * A simple URL? Woul…

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".

[deleted]

Re: Europe’s top court mulls legality of hyperlinks

#58

Post by im2w1l »

avar wrote: post #45
gioele wrote: post #2

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 ` ` HTML element? So overlay links inside YouTube videos are OK? What about elements with `onclick="window.location="`? * Anything that can point to a URL and is actionable? * A simple URL? Woul…

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".

People have earned a lot of money by nitpicking laws.

Re: Europe’s top court mulls legality of hyperlinks

#59

Post by AnimalMuppet »

jaredhansen wrote: post #41

In related news: Internet mulls increasing irrelevance of Europe's top court. Seriously, what are they going to do? Outlaw "unchecked" hyperlinks? Really?(!) Good luck with enforcement, guys!

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".

Re: Europe’s top court mulls legality of hyperlinks

#60

Post by euyyn »

icebraining wrote: post #8
duncanawoods wrote: post #7

Earlier quoted context omitted.

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.

It seems clear its aiding in a criminal enterprise and not a totally innocent knowledge product. What if I'm selling it to the police or to NGOs looking to help drug addicts?

Then no. The point being laws and court decisions can be as specific as needed.
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