Top EU court hedges on question of hyperlinking legality in Playboy case

Linking to unlawfully published copyright images can be legal -- unless you profit from it, says top EU court

To the old legal presumption of innocence until proven guilty, the European Union's highest court has added another: innocence until proven profitable.

It's OK for websites to hyperlink to an image published elsewhere without the rights holder's permission -- as long as they don't know that, and don't make a profit from it, the Court of Justice of the EU ruled on Thursday.

The ruling concerned Dutch website GeenStijl, accused by Playboy of linking to an Australian website that published, without the magazine's permission, a photoshoot it had commissioned with Dutch TV personality Britt Dekker.

Playboy's lawyers wrote to GeenStijl asking it to remove the link, but it refused -- and published a new link to another website hosting the photos without permission when they were removed from the Australian site. When the pictures disappeared from that site too, GeenStijl allowed its forum users to link to the photos on other sites.

Playboy took its accusation that GeenStijl infringed its copyright all the way to the Supreme Court of the Netherlands, which in turn called on the CJEU to rule on a number of legal questions.

The Dutch court asked whether hyperlinking to copyright-protected material published without permission of the rights holder is the same as publishing the material -- a "communication to the public" in the words of the EU's 2001 Copyright Directive -- and whether it made a difference if the material in question had not previously been published by the rights holder.

It also wanted to know whether knowing the material had not previously been published by the rights holder or was published without the rights holder's permission made a difference to the legality of the hyperlinker's actions.

In April, the CJEU's Advocate General, Melchior Wathelet, opined that hyperlinking was legal in all the situations raised by the Dutch court, whether or not the images were published without permission -- but his view was only advisory, and not binding on the CJEU.

Thursday's ruling from the CJEU is more nuanced.

It concluded that hyperlinks to images published without permission should be considered a communication to the public "when those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website."

On the other hand, when the links are provided for financial gain, it must be assumed that the linker knew or could reasonably have known of the illegal nature of the linked images, the CJEU concluded.

That's good news for hobby bloggers across the EU, who won't need to consult a lawyer before hyperlinking unless they profit from ads on their websites. And it's good news for the lawyers, who can expect a little extra business from the likes of GeenStijl.

Meanwhile, the ball is back in the Dutch Supreme Court to make the final ruling in the case, based on the CJEU's judgment.

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