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.

Linking to infringing material is an infringement of copyright in the Netherlands

The great debate continues: is it an infringement of copyright to link to third party content? And does it matter whether that content is itself infringing or not, or whether the person providing the link is making a profit from their website? A quick recap on what the courts have found recently: in the US it is ok to link to infringing content, but it might not be in the UK, and in Canada  it is ok to link to non-infringing content.


A family friendly bunny

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.