Top EU Lawyer says linking to copyrighted content doesn’t make you an Internet pirate

Linking out to copyrighted content doesn't make you a criminal, or at least according to this EU lawyer. Why is this a key distinction?

In early February we blogged about a case being heard before the Court of Justice of the European Union (CJEU) – Europe’s top court. The case is taking the issue of linking to copyrighted content, and if doing so automatically turns you into a copyright criminal yourself.

As you can imagine, we watched intently, as the case has the potential to turn the everyday act of linking into a legally-fraught, inherently subversive act. Many of you have likely joined our Save the Link network, where we work towards preserving our right to link from these kinds of technologically naive encroachments.

Last week, a big development happened in the case against GS Media, which owns a website that was said to have infringed copyright by linking to some leaked Playboy photos in 2011.

The Advocate General – which is essentially an elder statesman of lawyers, advising the courts on cases – released his opinion on April 7, and it’s a very encouraging sign for those of us who would like to continue linking without getting legal representation. Essentially, what Advocate General Wathelet said was that linking to something copyrighted online, without permission, doesn’t infringe copyright.

Why? Because you’re not making the copyrighted content available, even if you are making it easier to find. Now, if you happened to get the copyrighted Playboy pictures and you were the first to put them online, that would be a different kettle of fish. But just linking to them shouldn’t land you in hot water.

This is a pretty crucial distinction for a couple of reasons.

One: people don’t normally seek permission from the host of a website, or the author of material, before they link out to them. It’s just impractical. And if that were the norm, we’d certainly experience the Internet in a vastly different manner, because obviously if all links had to pass the permission test before being created, there would be a lot less of them. And what if you wanted to say something critical about the content on the other end of your link? You can imagine that might not thrill the author into giving you that permission.

Second: the Internet is dynamic. It’s editable, and most / many sites have an interactive element to them, where people can comment, react, and post links themselves. Can you imagine, before you linked to anything, having to check all the content on the other end of the link to make sure a) none of it was copyrighted and b) that in the chance it was, you had permission to link to it? Just the thought gives me a headache. And then consider that you’d have to keep checking back, every day, multiple times a day, to make sure nothing had changed?

All of the sudden our Grand Old Internet wouldn’t be so grand.

If the above sounds like a nightmare to you, you can rest assured that the AG Wathelet’s opinion strongly sides with those of us who would like to see linking remain an activity we can all continue to do without fear of legal reprisal.

Foundational to the discussion here is what American academic and legal scholar Lawrence Lessig describes as the struggle between a free culture and a permission culture – a free culture being one in which people are free to create, and a permission culture in which innovation can only happen with permission from the creators of the past. The outcome of this struggle will have far reaching consequences for art, cultural production, and innovation.

This case clearly is a key battleground in that struggle, and it isn’t over yet. The AG’s opinion is just one part of the legal process, and the CJEU has yet to rule definitively on this issue, but we’re hopeful that the court will heed the sage advice of the AG and declare once and for all that linking is not copyright infringement. The ruling is likely to come down sometime before autumn of this year, and we’ll be keeping our eyes peeled!

In the meantime, if you’re concerned about your right to link online, join our network at SaveTheLink.org.