European court says linking to illegal content is copyright infringement

>Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by 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 or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.

That last sentence is a bit hard to follow, but it appears to say that linking to freely available third party content constitutes a communication to the public of the freely available third party content only if financial gain was pursued by the linking party when they understood the third party content to be "illegal".

It is a seriously bad construation to infer that communication of public names (URLs) is a "communication to the public" of the actual third party content, unless the URL was designed by the third party for said content (however, in such case, the content was already communicated to the public by the third party).

I'm thinking in purely technical terms here, and that I can easily argue that such evidence is inadmissible, unless there's a certain number of independent, trusted snapshot services that would archive each link too, and allow one to compare the decrypted archive. To achieve that, one would probably want to use an indirection for linking so that such archives do not have to archive everything that exists, but just those that go through said indirection.

Then, the last question is how many independents you need to put trust in the verification, considering that motivated attackers could circumvent, say, the 3 most used archiving services. Or you could bind the archival of a link in a federated number snapshot services to a consensus algorithm. Then you'd ask yourself how many networks (which consist of multiple services) you'd trust.

Why did you insert the word "big" in front of "commercial sites"? There is no such qualification in the court's ruling.

Every small blogger who makes a little money through ads now has an obligation to check whether or not the owner of every single linked page owns the copyrights to the content they publish (or will publish on that page in the future).

I have no idea how anyone could possibly perform these checks. Do you ask the linked site for proof? But if anyone is going to find a way through this legal nightmare it's going to be the very biggest players with big legal departments.

In this case the _actual_ ruling is about linking to content that you know is illegal, but you still intentionally link to for monetary gains. Any reasonable court, or person for that matter, would go "oh... yeah that's obviously a VERY DIFFERENT matter from this article's claim, and punishing someone for that is kind of reasonable."