Hacker News Reader

Comment by seszett | Hacker News Reader

Have you read the decision[0] though? It specifically addresses this.

> it is to be determined whether 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 or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.

[0]http://curia.europa.eu/juris/document/document.jsf?text=&doc...

View on HN

I realize this is the EU, but if this ruling were to happen in the US, sites like cracked.com who link to copyright-encumbered content all the time (mostly Youtube clips of movies and TV shows, often produced by highly litigious houses like Disney/Marvel Studios) and make a ton of money from ads, would quickly be sued out of existence.

Usually the amount taken of a work is evaluated for a fair use defense, as is its inclusion in a broader work (article, in this case). Taking a small excerpt of a movie for purposes of parody is different from publishing a photo wholesale.

I agree, but again using Cracked as an example, they have many times linked to a 30+ minute video to make a one-sentence joke. That's far beyond fair use as far as the law is written. They also obviously do not get prior permission from the publisher; a typical older article from Cracked will have embedded videos that show "this was removed for copyright violation" placeholders.

You don't need prior permission if it's fair use, and it can still be fair use even if the video is removed (the DMCA ensures it has to be taken down regardless, at least until the uploader sends a counter-notice, and YT goes even beyond that).

Still, the 30m for a single joke might be infringing, yes, but so what? If it would be infringement if they served the video from their own servers, why shouldn't it be by embedding from YT?

>If it would be infringement if they served the video from their own servers, why shouldn't it be by embedding from YT? //

Because then the infringement, if there is one, is YouTube's and not the linker-to-YouTube's.

No, according to the courts, (in the EU) it isn't. My question is: why shouldn't it be?

EDIT: I mean, should it be.

> amount taken

Since a link doesn't take anything from the original work - it only references where the work may be found - then this amount is zero.

The law itself doesn't use the word "take" anyway, so your objection is irrelevant.

I never said the law used the word "take". So what. I was obviously referring to the fact that no copy is being made, and thus copyright doesn't apply and "fair use" is irrelevant. A link isn't anything like using a small portion of a work for e.g. review and critique.

Would that be a bad thing though? Those websites are purposefully acting in a way that doesn't respect the copyright of the owner of the content they want to show.

That they do this through a third-party host shouldn't be that important.

Yes. As a strong opinion holder in the copyleft philosophy of any and all content, I feel such sites have a right to exist and profit from content as much as the copyright holders (who are not necessarily the creators of said content).

But hey, this is just the opinion of some random dude on the Internet.

A random dude on the internet who must know that they their opinion is not current law in any of the countries under discussion?

If what is and what isn't law was that clear cut, the case wouldn't escalate to the European Court of Justice. Add to that that laws are arbitrarily incoherent and therefore the decision is just one possible interpretation of the law, albeit one that will be upheld.

Using the status quo as the basis of an argument of how things should be isn't very meaningful...

Why shouldn't it, when the host is a much more obvious target?

That the host is breaking the law doesn't mean the site that links to the host isn't breaking it as well.

If it already is accessible to that public, a mere pointer shouldn't be illegal.

It could be counted as advertising illegal activities, which is often illegal, too.

Byebye phonebook

IANAL, but my reading of that is if one makes money from one's site (e.g. by having ads) then EU will assume that one knows whether or not linked content is infringing. Because €10/month from adwords is totally enough to hire a lawyer to evaluate every link that users post.

Anyway, how does that "specifically address" GP's question about mutability? That isn't even mentioned in the bolded text.

As far as I can see from the rest of the document, the reason why profit motive is clumsily forced into that sentence is because it was argued that the act of posting the link itself was an attempt to increase the site's revenue because the owners were aware the public would be interested in visiting their webpage linking to the material because it wasn't authorised for publication anywhere at the time. Hence their decision to draw attention to it with "leaked pics" headline and post-DMCA-takedown followup headlines referring to the copyright holder whilst linking to new copies of the material. In other words they're saying that a publisher that has demonstrated awareness that a particular piece of material is so difficult to find that they can generate extra pageviews and revenue from communicating the fact they have a link to it, they can reasonably be expected to have carried out some checks to the provenance of the linked material. We're talking about a situation where the existence of the link and intimation that it might not be authorised was the subject of a headline, not an entry in a directory or search result. A natural reading of "links are provided without the pursuit of financial gain" is that if the posting of hyperlink(s) to copyrighted material is incidental to the profitability of your site you're probably not in danger of falling foul of that particular directive.

There are other more unambiguous statements acknowledging existing case law which appears to rule out webmasters falling foul of websites' mutability like: The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work

Since links are just addresses that can be followed automatically, I strongly disagree with the ruling that this applies under the cited precedence;

in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work

Anything already in a public index should not be illegal to point to.

> Because €10/month from adwords is totally enough to hire a lawyer to evaluate every link that users post.

And that’s where courts will just classify you as noncommercial.

If you don’t make enough with it to finance your lifestyle, it’s very likely not really commercial.

That's not true - at least for Germany. Here a repeated action to earn a profit is considered commercial activity.

I'm not sure what a court would think about 10€/m, but I guess 100€/m would be considered commercial.

EDIT: the common description of being commercial in Germany is: a planned, longer term acting to make money - it's not even necessary to make a profit. Source (in German): http://www.it-recht-kanzlei.de/verbraucher-unternehmer.html

Yes, but there’s a legal difference, and courts in Germany have to take Verhältnismäßigkeit into account.

You can’t sue the parents of a kid selling lemonade in their frontyard, even though it’d technically be a violation of the Lebensmittelverordnung.

Just like a small webblog which does not even qualify as Nebeneinkunft, and which is not taxable, would also be not relevant for such a case, unless you published it knowing it was illegal to make that money.

The ruling acknowledges that targets linked to are mutable, but it's just that, an acknowledgement. Not being a lawyer, I can't say what it means for a judge to confirm that link targets are not immutable, and leaving it at that.

Yes, I did. Please see my sibling comment and EDIT addendum.

Reply on news.ycombinator.com