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Last week the Dutch Courts gave their view on the issue: in the Netherlands can be an infringement of copyright to provide a link to an infringing photograph. The Dutch blog GeenStijl provided a link to naked photos of model/reality TV star Britt Dekker. The photos had been leaked from Playboy magazine shortly before publication of its November 2011 issue, and had been illegally uploaded to a website called Filefactory. In providing the link, GeenStijl was found to infringe Playboy publisher Sanoma's copyright in the image. It has been ordered to pay €28,400 and will face further fines if it does not take the link down. The decision is available, in Dutch, here.GeenStijl has posted an online statement saying that the decision is "terrifying for every journalist and everyone with a website". The statement says that GeenStijl disagrees with the court's reasoning, and argues that Dutch copyright law is in urgent need of reform.
The Court held that while linking to a photo does not infringe in itself infringe copyright in that photo, there are a number of factors which must be taken into account and which may cause copyright infringement. In this instance it was relevant that the public was not aware of the existence of the leaked photos before GeenStijl published the link, and that the public would not have had access to the photos had GeenStijl not published the link.
The Dutch Court also took into consideration the fact that GeenStijl is an ad-supported website, which would profit from posting the link, as it would attract more visitors to its site.These two factors served to make the link infringing. Although it may be different under Dutch law, the potential to make money from an activity is not traditionally relevant to an analysis of copyright infringement, although we are seeing that in the online world it is clearly a relevant factor (see here and here for example).
GeenStijl has said that it will appeal the decision. Janneke Slöetjes of Dutch digital rights organization Bits of Freedom has commented saying that Bits of Freedom is not happy with the verdict which spells uncertainty for search engines. On the other hand Tim Kuik, director of Brein, the Dutch anti-piracy foundation, has said that "This [verdict] offers many opportunities against sites that are consciously offering access to unauthorized content".This blogger agrees with the sentiment that linking to infringing material should not be right, but queries whether it is really an infringement of copyright?
More on this story from Ars Technica and from PC World.
The UK case referenced is a defamation case, not a copyright case. I'd say that in the UK linking has been made uncertain by NLA v Meltwater, but perhaps even more so by the Richard O'Dwyer extradition case where his site did link to infringing content.
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