European Court of Justice bans hyperlinks on grounds of copyright laws to protect corruption?

On 08Sep2016, the European Court of Justice ruled that where a commercial/profit-making body links to copyrighted piece of work, the body must assume it is illegal to do so unless it has evidence to the contrary.

The court sets out its description of events in the third paragraph of its ruling.

Summary of the Court’s press release

A Dutch company GS Media BV (“GS”) posted links to an Australian website to photos of some Dutch celeb Britt Dekker.  The Australian site had no permission from the rights holder of those photos (“Sanoma”) - Dekker is not the rights holder of those photos - so demanded that GS remove its links to the photos.  GS refused.

At the same time, Sanoma demanded that the Australian website also remove the pictures.  The Australian website complied.

In response, public users of a forum hosted by GS posted links to the forum revealing where the same photos continued to appear elsewhere on the internet.

The Court considered that an EU Directive requires all member nations to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works.  The Court accounted for case law.

The Court upheld a discriminatory value-judgement.  If someone links to copyrighted content without the intention (or accomplishment) of making profit, then the copyright holder’s rights are unenforceable.  But if that somebody links to copyrighted content as part of a profit-making commercial operation, no matter how incidental to the business, then that person should as a matter of course find out who owns the copyright and get their permission to link to the copyrighted material.

The Court held that GS published the links for profit and that Sanoma had not authorised the publication of the photos on the internet.  Therefore, GS had to remove all links on its website to those photos.

Commentary

As one commentator wrote, “This is a fucking disaster”.

Even the European Advocate General hesitated to think in the same way as the Court, noting that “hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery.“  Moreover, the EAG considered irrelevant the two factors that the Court found so important, namely: i) GS’s motivation (profit); and ii) whether GS should have known the photos were a breach of copyright.

But the vested interests who profit from enforcing copyright law were quick to demand the status quo.  One copyright lawyer was so taken aback by the maverick and radical view of the EAG - presumably because it recognised the immediate loss of ‘business’ that would happen if the Court agreed with the EAG - that it described the EAG’s views as an attempt to undermine the acquis of copyright law.

Unsurprisingly, the Court has ignored the Advocate General and has again ruled in favour of sustaining artificial, profiteering monopolies of intellectual property, a.k.a. the acquis.

Objectively, however, the discriminatory value-judgement within the Court’s press release is disingenuous and false.  Even if a non-profit-making individual linked to copyrighted material, then the copyright holder can still sue the linker to the copyright holder’s own profit, even if the individual received no funds as a result of the link.  Negligence is negligence, after all, no matter how well intentioned it might be, and because of copyright law, from negligence may flow profits to a ‘wronged’ party.  It’s a classic example of the King doing the nasty work of the Sheriff of Nottingham.

But here is the real issue.  The implication of the Court’s ruling goes beyond profiteering by copyright holders, because its discriminatory value-judgement cannot be enforceable in future cases.

Where does this take us?  In combination with the sickening European “right to be forgotten”, it takes us to a place where the corrupt can further lawfully conceal their criminal acts.

Hence why GS is a key player in this case.  GS is very much a pro-freedom, activist, anti-European-Union forum.  GS’s loss at law is arguably GS’s gain at public, because it has revealed just how tyrannical and double-standarded the media elite are lawfully allowed to be, and worse they can profit from it!  This case is all about a photo of a typical media-celeb (not exactly known to be the quiet, shy, self-publicity-hiding, demur types) appearing on the internet without the right holder being able to make money from its publication.

GS’s own comment on the decision is scathing.  To GS, the Court has enforced copyright law precisely to undermine both i) a free press; and ii) a free internet.  Public comments reveal the depths of Euroscepticism amongst GS’s readership, and therefore the wider section of society hostile to blatant corruption.  Note the comment that refers to “EUSSRopa”, and another that says, “Zo snel mogelijk een Nexit weg van deze dictators uit de EU”, and another that predicts the death of the internet because of the EU’s “linktax”.

It’s yet another example of how the European Union bolsters the interests of lobbyists with deep pockets against the objective freedoms of the masses.  Far from demonstrating that we need a big, strong state, this case proves hands-down just how damaging a big state objectively is.

There could be another court hearing to follow, but even if the Supreme Court agrees with the EAG and undermines the profits of the copyright enforcement industry, the damage is already done.  The industry won’t give up; it’ll lobby the European Commission for more law that keeps them in business.

What if you are a copyright holder that wants fair remuneration for your work (or, more accurately, the work that somebody else did but from whom you bought the right at a gross undervalue)?  Well, that’s fair enough.  Just provide some content that is actually worth paying for… without stealing somebody else’s ideas, or co-incidentally re-inventing those same ideas, or solving a problem in the same way as somebody else, or implementing an idea that a four-year-old could have had, or allowing it to be digital media (for whatever reason).  If you are any good, then you won’t need an artificial monopoly at law to justify your ‘agents’ taxing your own customers for recommending you.

The sooner the British leave this toxic European Union, the better.

Bootnote

The American model of copyright regulation seems just as corrupt as that which the Europeans seem to build.  According to one pressure group, standard ‘revolving door’ corruption applies at the American Copyright Office, whereby an unspoken rule is that the office is run by ‘former’ employees of the entertainment industry.  However, American courts tend to overturn decisions by the Copyright Office, whereas the European Court enforces the acquis against those who don’t pay cash for expressing their opinions.