Posting a link to a website with unauthorised copies of photos is not in itself an infringement of copyright. That's the view of advocate general Melchior Wathelet, one of the top lawyers whose job it is to advise the EU's highest court, the Court of Justice of the European Union (CJEU).

Although Wathelet's opinion isn't binding, it's generally indicative of how the CJEU will rule when it issues a final judgment on a given issue.

As Ars explained a couple of months ago, the current case involved a popular Dutch blog that posted links to photos owned by a company called Sanoma. The pictures were commissioned for publication in Playboy, but turned up on an Australian website without permission. The CJEU has been asked to rule whether merely linking to unauthorised copies was enough to constitute copyright infringement.

In his preliminary opinion, Wathelet said they weren't, for the following reason: "hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another web site, and only serve to facilitate their discovery. The actual act of ‘making available’ is the action of the person who effected the initial communication."

The key point here is that the photos had already been put online by the Australian site, so pointing to them using hyperlinks could not in itself be considered "making them available" for the first time. Wathelet went on to say that the fact that the Dutch blog "knew or should have known that the initial communication of the photos on other websites had not been authorised by Sanoma, or that the photos had not previously been made available to the public with Sanoma’s consent are not relevant."

Wathelet showed a refreshing understanding of how the Internet works in this explanation for his opinion:

Although the circumstances at issue are particularly flagrant, the advocate general considers that, as a general rule, Internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the Internet was done with or without the consent of the holder of the copyright. If Internet users risk liability for copyright infringement every time they place a hyperlink to works which are freely accessible on another Internet site, they would be much more hesitant to post those links, to the detriment of the proper functioning and very architecture of the Internet as well as the development of the information society.

That is the key point: if merely linking to material that has been published on a website might be considered a separate act of copyright infringement, it would have a chilling effect on the use of hyperlinks, and thus on the Web itself. The advocate general recognised that in his opinion.