Friday 18 January 2013

Linking "facilitates" copyright infringement in the Netherlands

© Geralt
The application of copyright law to linking is an interesting and much debated topic at the moment. This is particularly so in the Netherlands it seems, where twice in the last few months courts have held that linking to content can constitute "publication" of that content (see here and here).

This week, a Dutch maths teacher has been told by the Dutch courts that by providing links on his website to infringing pdf copies of answers to maths questions, he infringes copyright in the answers. The pdf copies had been illegally uploaded to the internet so it seems that the issue was not that linking to online material constitutes publication (as it was in the two above cases), but that linking to infringing content facilitates third party infringement (by the students who clicked on the links - presumably their infringing act would be to make local copies of the material?)
This case raises three basic issues:

First, it is arguable that a solution to a maths problem is not sufficiently original to attract copyright in the first place. Indeed the teacher argued that as there is only one correct answer to a maths problem that answer should not be protected by copyright. The Dutch court held that whilst there might only be on solution to the problem, there are various ways of explaining how to solve the problem and therefore the answers were subject to copyright.
Second, making copies for personal use is permitted in the Netherlands, so the students were not infringing copyright by clicking on the links. This was deemed irrelevant by the court.

Third, should it matter, from a copyright perspective, whether the content being linked to is infringing or not? Surely if the content is infringing the infringing act lies with the person who uploaded the material rather than with the person who reads it?
Nonetheless, the court held that although linking does not in itself constitute copyright infringement, the links enabled others to infringe copyright, meaning that the publisher of the maths books suffered a direct loss due to the links to pirated copies. The fact that the teacher made no profit from the providing the links was not a defence. The teacher was therefore found to have facilitated copyright infringement and was ordered to remove the links from his website and to pay both parties costs.

This blogger is no expert in Dutch copyright law, however this seems to be an example of courts using copyright law to remedy something which seems wrong (linking to infringing material), despite the fact that the law doesn't quite fit. If anyone has an English translation of the court's judgment this blogger would be interested to see what infringing act it was that the court thought that the teacher was facilitating.
See more on TorrentFreak, here.

1 comment:

Andy J said...

I'm equally bemused by this decision and would love to know more of the reasoning.
By rejecting the example that students may lawfully download a work for their personal use because it was considered irrelevant - presumably because of the fact that actual copy they would have downloaded was not a legitimate copy hence their legal action would not rectify what was already illegal - I can see that court was trying to exclude anything which might confuse the facts, but surely that does not provide any real support for their central finding. I have no idea whether the teacher concerned knew that the pdfs he linked to were infringing copies, but if he didn't this sort of decision places the innocent person who links in this manner in an invidious position of having to establish the bona fides of a site or content before linking. I can imagine many problems with this.
To use an analogy: if a policeman uses his two-tone horn and blue light without authorisation to exceed the speed limit he is breaking the law. Do I, as another road user, have to ascertain whether the policeman's use of the lights and horn is legal or not before I pull over to let him pass, and if I fail to do this when his action is without authorisation, am I guilty of assisting an offender?