back to article This is how the EU's supreme court is stripping EU citizens of copyright protections

An upcoming EU court decision could strip half a billion EU citizens of their copyright protection, and all because of an accidental translation error. In practice, it means that a link to your stolen family photos (which would never happen because the cloud is so secure, right?) would be free to circulate and there’s nothing …

  1. Dr. Mouse Silver badge

    I don't fully understand...

    A hyperlink is purely a direction towards material. How can hyperlinking to content which is in violation of copyright itself be a violation of copyright?

    Take this to another level. I learn of a guy in the local market who is selling dodgy DVD copies of a particular film. While at the pub, I hear someone saying they are looking for that film, and I tell him about the guy in the market. Am I violating copyright?

    Personally, I would say no. I have just given someone information about where to find something they were looking for. If that person chooses to buy said DVD, he and the seller would be violating IP law, but I do not believe I should be held responsible for that violation.

  2. FuzzyWuzzys
    Facepalm

    Errrm....no information on this....errrm....get all the Toffee Crisps from the back...errrm....sellotape all the newspapers together....errmmm...vote Brexit?!

  3. Anonymous Coward
    Anonymous Coward

    "A decision to put hyperlinks beyond the reach of copyright"

    ... would be utterly sensible.

    The information/song/whatever is already *published* on the Internet: a hyperlink just tells you how to find it.

    If I write a catalog telling you that the Mona Lisa can be found in The Louvre, am I in breach of copyright in the painting?

    To restrict access to something on the Internet, *protect it*. That means issuing a 403 Forbidden HTTP response to anyone who is not authorised to access it. Otherwise, it's an open invitation for anyone to access it.

    Or is the issue to do with someone who creates a web page containing content which is not theirs to publish? Then they are the offender, not the person who links to it.

    1. Andrew Orlowski (Written by Reg staff)

      Re: I don't fully understand...

      "A hyperlink is purely a direction towards material. How can hyperlinking to content which is in violation of copyright itself be a violation of copyright?"

      Uh. Because it's the internet, and the principles have to apply. You're talking about secondary liability. A bunch of hyperlinks giving a user direct access to all the content in the world, that isn't licensed, doesn't have a physical analogy. Physical analogies don't really apply, principles do. So the courts have to grope their way towards a just theory of secondary liability.

      Your argument (possibly made more in hope than expectation) is "Not illegal. Because internet."

      That ship sailed a long time ago.

      1. localzuk

        Re: I don't fully understand...

        Sorry Andrew, once again you are chasing a reality that should not exist.

        A hyperlink is the equivalent of someone saying to a room full of people that something exists and where it is. That isn't a crime, even if they are telling them where copyrighted material exists. They haven't themselves disseminated the copyright material. If it were a crime, it'd be absurd. It could even be argued that banning such a link would be an infringement of the right to freedom of expression.

        So, why does that suddenly change when it is a link on a website? The link itself doesn't contain any illegal material. It is a quickdial on a phone.

        Your view leads to the conclusion that hyperlinks are a crime unless they have the express permission of the owner of the copyright of that destination. Something that would make the internet a pointless place.

        1. John Lilburne

          Re: I don't fully understand...

          Someone puts family images on flickr marked as private viewable only by family, so the pages are protected. However, some one gets the links to those images and puts them on a website that is viewable to all. The hyperlinks are to images that the uploader never intended to be public. In fact the hyperlink is no more than a skeleton key to the contents of someone's locked cupboard.

          1. Dr. Mouse Silver badge

            Re: I don't fully understand...

            Someone puts family images on flickr marked as private viewable only by family, so the pages are protected. However, some one gets the links to those images and puts them on a website that is viewable to all. The hyperlinks are to images that the uploader never intended to be public. In fact the hyperlink is no more than a skeleton key to the contents of someone's locked cupboard.

            That's an even worse analogy. If this is possible, it's more like you are hiding the images around a public place, then putting a map to those images in a locked box accessible only to family members. It doesn't stop someone accidentally finding those pictures, making their own map and putting it somewhere public, or a family member photocopying the map and giving it to someone.

            If the images are actually secure, they are in the locked box and only the family members are able to get at them. Of course, it wouldn't stop those family members copying the images and putting them somewhere public but, without that, noone without the key can get at them even if the know where they are.

            1. John Lilburne

              Re: I don't fully understand...

              Once again your justification resolves down to "Internet".

              It makes no difference whether the security measure is crap or not. The clear intention is that the images aren't for general public consumption. The hyperlink breaks the lock and it does not matter how the hyperlink escaped.

              Yes one can put the images on personally hosted web servers and use .htpasswd to protect access. But that is really outside the scope of the vast majority of people and is quite frankly elitist bullshit.

              1. strum Silver badge

                Re: I don't fully understand...

                >The clear intention is that the images aren't for general public consumption.

                Then why are they on the (public-facing) web? Your argument, along with Orlowski's, collapses.

          2. Cynic_999 Silver badge

            Re: I don't fully understand...

            "

            In fact the hyperlink is no more than a skeleton key to the contents of someone's locked cupboard

            "

            No, it is merely directions to someone's *unlocked* cupboard that is sitting behind a particular tree in a public forest. If the cupboard were locked, clicking on the link would result in a "forbidden" message, or an invitation to supply username & password.

            1. John Lilburne

              Re: I don't fully understand...

              'If the cupboard were locked, clicking on the link would result in a "forbidden" message'

              As stated above most people do not have the ability or resources to maintain their own site. They rely on things like FB, Flickr, and other services. Pretending the John and Jane Doe who simple want to share images of their kids with their families can't do so because they aren't webmasters is typical geek shite.

              1. jbuk1

                Re: I don't fully understand...

                > FB, Flickr, and other services

                But all of these services have easy to use controls to specify the target audience so what the heck is your point?

                You need to be a geek to choose "friends and family" option when uploading to facebook?

          3. KeithR

            Re: I don't fully understand...

            Nope - the links WILL NOT give an unuthorised person access to PRIVATE images on Flickr. They'll just be served a "you are not authorised to view..." message..

            1. John Lilburne

              Re: I don't fully understand...

              Links to the jpg are unprotected,

              https://c1.staticflickr.com/7/6103/6310349352_12172b4af9_b.jpg

              links to the photopage are protected.

              https://www.flickr.com/photos/lilburnej/6310349352/

        2. Anonymous Coward
          Anonymous Coward

          Re: I don't fully understand...

          Thereby if a friend of yours tells everybody your backup key is under the third plant from the right, you're fine? He's not stealing from your house. It just telling others how to do it easily....

          1. jbuk1

            Re: I don't fully understand...

            A URL is not a key so that's a stupid analogy.

            Your example would only have some truth if the linked resource was protected by and password and along with the url you also provided the hacked username and password. Even then, this isn't copyright, it's computer misuse.

      2. Bluewhelk
        Holmes

        Re: I don't fully understand...

        I think you are conflating two different things here, for example you have an image on a website

        say http://mysite.com/image.jpg

        This is not a link, it is the actual image stored on the server, this would be violating the copyright if the owner did not consent to it being there.

        Now you also have links on a webpage named say http://mysite.com/list_of_images.html or even http://anothersite.com/interestingpics.html on a completely different server.

        These would contain something like the link a href="http://mysite.com/image.jpg" Piccy /a (missing lt and gt intended)

        This is not the image, just a link so doesn't logically infringe the copyright. Only the original "http://mysite.com/image.jpg" does.

      3. Dr. Mouse Silver badge

        Re: I don't fully understand...

        Your argument (possibly made more in hope than expectation) is "Not illegal. Because internet."

        Actually, no, that is not my argument. In fact, I explicitly related it to a non-internet situation I felt was similar.

        OK, let's take 2 more analogies:

        1) I know of a person who has almost every film ever made on DVD, who will copy them for you on demand. When people ask me about potential sources of pirate DVDs, I give them this guy's contact details.

        2) I know of a website where one can download almost any film. When someone asks me where they should download pirate material, I tell them the address of this site.

        Am I guilty of copyright infringement in either of these 2 cases? Because these are the closest real-world analogies I can think of, and come extremely close to hyperlinking, yet I would be surprised if I had violated copyright myself.

        I will actually turn it around: Your own argument is that it's illegal "because internet".

        1. Toltec

          Re: I don't fully understand...

          Other analogies

          Someone you know tells you they want to kill their wife, you provide the telephone number of a fixer that can supply a weapon or an assassin, dependent on budget. Would you expect knowingly providing information that facilitates a murder to get you in trouble with the law or not?

          Someone asks you for the number of a specific person you know is 'dodgy', they contact the person and arrange for their wife to be killed. How culpable are you in the comission of the crime?

          You run a directory service that, unknown to you, is used by people offering criminal services, how responsible are you for the crimes committed?

        2. Lyndon Hills 1

          Re: I don't fully understand...

          Surely this, and Andrews previous reply, indicate the problem. Prior to the internet (or digital distribution really) most of this didn't matter, as you couldn't do it - by which I mean simply provide a means for someone to obtain a perfect copy.

          The suggestion above that there is a difference between linking to a stolen image on a server that one owns, as compared to linking to a stolen image on another server seems specious. The practical effect is the same - the stolen image is there to be viewed.

          The law, as it stands doesn't work anymore, and comparisons with physical situations don't help. Seems to me that we (society) need to figure out is what is the right thing to do, so the law can evolve to work in the digital age. It doesn't matter what a hyperlink actually is,what matters is what it enables, and if what it enables is wrong then let that be the guide.

          1. Dr. Mouse Silver badge

            Re: I don't fully understand...

            Someone you know tells you they want to kill their wife [etc]

            The first, yes, I expect I would go down for aiding and abetting or something.

            The second, if they asked for the contact details of a person without describing why, I would not expect to have committed a crime.

            The third, again, I would not expect to have committed a crime.

            I am not actually intending to argue that any of these actions are legal or illegal, I was more asking for clarification. The arguments put forth in the article do not add up, to me. I'm against piracy, but I'm also against governments bringing in nonsensical laws.

            Another example: I know the guy at the end of the street is selling weed. Someone asks me where they can get weed, and I give them his details. Have I committed a crime there?

            Or, I know the guy is selling weed, and someone asks me for his contact details (without telling me why). Have I committed a crime?

            If it turns out that knowledge of why I'm giving details is required in the above cases (e.g. I would be committing a crime if I was asked where they could get weed, but not if they just asked for his details) then the same should apply online. If I linked to a website providing pirated materials, but which also provided non-pirated materials, and I was linking without reference to the pirated materials, then I would not expect that I have committed a crime.

          2. Sorry, you cannot reuse an old handle.

            Re: I don't fully understand...

            There's nothing telling me that the content of page X on website Y is actually been put there illegally or that its distribution by entity Z would be illegal so while in the case of murdering it is a clear cut case, when talking about IP it is not...

            Merely referring to a document that you're not the author of is NOT infringment, otherwise every office workplace would be a nightmare, with people having to double-check whether each document they send around or even mention to someone on the phone has actually been obtained legally or not...

            1. ratfox Silver badge

              Re: I don't fully understand...

              If the images are actually secure, they are in the locked box and only the family members are able to get at them. Of course, it wouldn't stop those family members copying the images and putting them somewhere public but, without that, no one without the key can get at them even if they know where they are.

              Sometimes, the URL itself is the key. For instance, one of the security settings of Google Docs is "anybody with the link can access", which essentially means "everybody can access it, but good luck guessing the 64-digit hash in the URL if somebody doesn't give it to you". When you think of it, having an additional 10-character password to protect the document really seems superfluous.

        3. Anonymous Coward
          Anonymous Coward

          Re: I don't fully understand...

          In both cases, if you do it for money (and being a magazine, you do it for money), and you actively promote pirating, I guess you can be liable, even if you don't directly deliver the actual DVDs. Supporting criminals is a crime itself...

          1. MrDamage

            Re: I don't fully understand...

            > Supporting criminals is a crime itself...

            No, it's called voting.

        4. Sorry, you cannot reuse an old handle.

          Re: I don't fully understand...

          Spotlight on macOS and its equivalent on Windows do index all my documents (including those that I've written myself). Is the search result listing an infringement given that they are copyrighted by me and I haven't given specific permission to index them??

      4. Doctor Syntax Silver badge

        Re: I don't fully understand...

        'Your argument (possibly made more in hope than expectation) is "Not illegal. Because internet."'

        Can we please distinguish between the internet as a whole and the WWW? That's an important distinction to make because hyperlinks are how the web works; no hyperlinks, no web. Every page on The Register has loads of them. So can we get rid of the notion that hyperlinks in themselves are illegal or a breach of copyright?

        We then have to consider some of the areas of complaint. One is the row about deep linking. One site publishes content. Another has a link to that content. First site complains that its content is being "stolen". As above, hyperlinks are how the web works. If you don't want people to link to it, don't publish it on the web. Possibly the context in which the deep-linked material is presented is intended to deceive the viewer into thinking that it was the second site's work. In that situation there may be a case to answer but it's a case about the deceptive presentation, not the link itself.

        The other is material uploaded and made in breach of copyright. That's the offence. A link to it is, in itself, no more than a statement of fact. To go beyond that you have to look at the circumstances in which the statement is made.

        Take an example: You tell me that you're looking for a good picture of a sunset. I find a really cracking example on the web and email you a link. It turns out that the picture was actually a third party's picture, uploaded in breach of copyright but with no indication that that was the case. All I've done is make, in all innocence, a factual statement as to where you can find what you were looking for.

        If someone is publishing a list of links to such material in a context where there's a clear implication, if not an outright statement that the material is hooky then secondary liability comes into play but it's not the links themselves that are the problem, it's the context which forms an incitement to commit further breaches of copyright that should give rise to secondary liability. What's more it's not the communication's being in the form of a list of hyperlinks that gives rise to the liability, the same liability arises from telling someone that there are stolen phones for sale in a particular pub.

      5. newspuppy

        Re: I don't fully understand...

        Does this logic imply that if I were to link to your story from my blog, (after saying the brilliant author has some interesting points in <THIS> article) I am guilty of copyright infringement?

        Do I have to get permission from you to post a link to your story?

        Or are some links bad, and liable for copyright infringement, but others that are good for the linkee's business (as they drive traffic) and are not good?

        If in real life someone asks me what the sirens are, and I point down the street and say that I believe the Police are responding to a robbery, am I an accessory?

      6. VinceH Silver badge
        Facepalm

        Re: I don't fully understand...

        'Your argument (possibly made more in hope than expectation) is "Not illegal. Because internet."'

        Says the guy who's response began with the words:

        "Uh. Because it's the internet"

    2. Someonehasusedthathandle

      Re: I don't fully understand...

      Hyperlinking to a page of links to should not be in violation. - In your analogy that's informing someone that the dodgy bloke is down the market.

      Hyperlinking to the actual DVD download is - The bloke himself.

      The problem is that because "hyperlink" is a catch all it can only be treated as such.

      (Hope that's clear and snark free unlike someone else)

    3. Anonymous Coward
      Anonymous Coward

      Re: a hyperlink just tells you how to find it.

      Just to play devil's advocate...

      What if an experimental poet writes an original work about (e.g) trees entirely in the form of one or several hyperlinks/urls. Should they not hold the rights over their work? If the url's actually can be used to recover a webpage (because they're an IT literate sort of poet), does s/he both retain (poem!) and not retain (url!) copyrights in their "url" work?

      Presumably I might publish the url to say "look at the interesting webpage at $URL", but not "read this cool experimental url poetry $URL"?

      And if I change the hypothetical original content from an experimental poem about trees to something rather less SFW, by rule 34 this situation already exists. Oh noes!

      :-)

      1. Anonymous Coward
        Anonymous Coward

        Re: a hyperlink just tells you how to find it.

        What if an experimental poet writes an original work about (e.g) trees entirely in the form of one or several hyperlinks/urls. Should they not hold the rights over their work? If the url's actually can be used to recover a webpage (because they're an IT literate sort of poet), does s/he both retain (poem!) and not retain (url!) copyrights in their "url" work?

        https://the-artist.retai.ns/copyright2/works.of

        https://their-own-creativity.no/matter?the=medium&_OR=substance

        https://withoutthisruli.ng/each%20hyperlink/could_%F0%9F%90%9D_considered

        https://an-infringeme.nt/~ofthe/copyright.of

        https://the-linked.to/#work

        http://www.urbandictionary.com/define.php?term=IANAL

    4. Doctor Syntax Silver badge

      Re: I don't fully understand...

      "While at the pub, I hear someone saying they are looking for that film, and I tell him about the guy in the market. Am I violating copyright?"

      No, but you might well be aiding and abetting fraud, depending, of course, on whether the stuff actually is hooky.

    5. Anonymous Coward
      Anonymous Coward

      Re: "A decision to put hyperlinks beyond the reach of copyright"

      If you have a private telephone numbers (and you are someone many would like to know the number of), and someone publish it without your consent, how would you feel? The number just tells how to find you. Or if you again, are someone many would like to meet, but wishing to live in peace, and someone publish your address? If I buy anonymously a famous painting, and you publish where everybody can found it (and stole it - Monna Lisa place is already public).

      Wouldn't you be liable for disclosing data that could lead to unlawful acts? Could you publish without being liable information that lead to breaking someone else rights - including copyright?

      1. Cynic_999 Silver badge

        Re: "A decision to put hyperlinks beyond the reach of copyright"

        "

        If you have a private telephone numbers (and you are someone many would like to know the number of), and someone publish it without your consent, how would you feel?

        "

        Private unlisted numbers are often published in lists sold to tele-marketing companies. I may well be hacked off, but I would not regard it as a breach of copyright. Get used to the fact that not everything that is annoying is illegal.

      2. DougS Silver badge

        Re: "A decision to put hyperlinks beyond the reach of copyright"

        You might feel unhappy if your private phone number is leaked, but that has nothing to do with this case...

        But using your example, web site A hosting copyright violating content and being linked to by web site B is sort of like person A knowing your private phone number and person B saying "ask person A if you want AC's private phone number". Even if you passed a law making it illegal to divulge a private phone number, meaning person A can be fined or jailed for telling, do you really suggest that person B should also be breaking the law by merely telling people who to ask if they want this illegal information?

        It is no different than if someone you know wants to buy drugs and you happen to know someone who sells drugs. If you say "talk to Bob" when asked "hey do you know where I can buy some drugs?" you aren't committing a crime (at least in the US, that's not enough to be legally an accomplice)

      3. KeithR

        Re: "A decision to put hyperlinks beyond the reach of copyright"

        "If you have a private telephone numbers (and you are someone many would like to know the number of), and someone publish it without your consent, how would you feel?"

        Breach of DPA, NOT copyright.

    6. YARR

      Labour say the leave campaigners want to start a new British Empire! The beeb are sure this will please Vladimir Putin - he's ready for the next Charge of the Light Brigade ... like everything else they say it's all true. #STAYIGNORANT

    7. Yes Me Silver badge

      Re: "A decision to put hyperlinks beyond the reach of copyright"

      Correct. At last, some lawyers who understand the difference between call by reference and call by value.

      "A decision to put hyperlinks beyond the reach of copyright would place the European Union in breach of its Berne Convention obligations."

      Rubbish. The Berne Convention protects the document not the references to it. Or did I just breach copyright by planting that link? I don't think so.

    8. Yes Me Silver badge
      Devil

      EU conspiracy aspect

      Yes, it's clearly another attempt by those evil people in the EU to destroy the Web, that great British invention made in Switzerland.

      Listen to your brain, vote Remain. That's very tweetable.

      1. YARR

        I do listen to my brain - by every rational argument, there is no reason to surrender British sovereignty to unelected bureaucrats in Brussels.

        I have to assume you are joking, or do you really base your opinion on such strawman reasoning? No I don't think the EU are destroying the web, and I don't think the web was a British invention.

        Switzerland in not the EU, thus CERN (where the WWW was invented) proves that co-operation between European nations works just brilliantly without the rip-off EU parliament granting us permission from on high to co-operate. I fail to see how prominent scientists with reputations to uphold support the remain camp based on invalid reasoning.

        If you vote to remain then you agree that someone who is unlikely to be British or live in Britain should have authority to overrule our parliament and dictate our laws. That viewpoint is contrary to the constitution of our and most other countries, it is treasonous.

    9. RegGuy1
      Facepalm

      In the interests of balance...

      Errrm....no information on this....errrm....get all the Toffee Crisps from the back...errrm....sellotape all the newspapers together....errmmm...vote REMAIN?!

    10. DrXym Silver badge

      Re: A hyperlink is not content

      A hyperlink CAN be content.

      data:image/png;base64,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

  4. DavCrav Silver badge

    This is complete garbage:

    "Those conventions are already incorporated in EU law, he said, so every judgement must be implicitly compatible with a convention."

    If you write "Don't steal things", and then a few hundred pages later on write "Well, just on special occasions you can steal things", then you are in contravention, even though you definitely did write "don't steal things" at the start. It's a junk argument from someone who clearly has wool in his head.

    1. Raumkraut

      If you write "Don't steal things", and then a few hundred pages later on write "Well, just on special occasions you can steal things", then you are in contravention, even though you definitely did write "don't steal things" at the start.

      Well now, legally speaking, it depends on how one defines "steal" and "things". And possibly "don't".

  5. Frank Zuiderduin

    Copyright a hyperlink?

    Think about it. That would be a real disaster. Whatever ensued from the decision not to allow that, that ruling is basically the only sensible thing they could have done.

    1. Anonymous Coward
      Anonymous Coward

      Re: Copyright a hyperlink?

      A disaster for people who want to steal stuff, sure.

    2. VinceH Silver badge

      Re: Copyright a hyperlink?

      The problem is that the situation the article is discussing are where the hyperlinks are to stuff that is itself subject to copyright, and which has been published without the owner's permission.

      So the logical answer seems to me not to make those hyperlinks subject to copyright, but to find anyone who publishes them guilty of a crime of, say, "facilitating copyright infringement".

  6. Anonymous Coward
    Anonymous Coward

    There's a link next to this article:- "Don’t let the Barmy Brexiteers wreck #digital #europe"

    It would seem the EU is managing that without any outside help.

  7. Doctor Syntax Silver badge

    "A decision to put hyperlinks beyond the reach of copyright would place the European Union in breach of its Berne Convention obligations."

    Really?

    Let's take a real world example.

    I copy a document that's somebody else's copyright. Unless I'm covered by fair use that's a breach of copyright. I post that copy somewhere public, maybe by displaying it on my front gate, maybe stick it on an advertising hoarding, wherever. That's definitely a breach of copyright.

    Someone then spreads the word that there's a document there. Just that. It doesn't say what the document contains*. It doesn't say whether it's a copy of something that's somebody else's copyright. It just says that there's a document there. How is that, in itself, a breach of copyright? It's a simple statement of fact. Or is it even that? If I remove the document but the word is still being spread and is now erroneous.

    *The name of the document in the link might be arbitrary, something like image_$1.jpeg or it migh hint what the document contains, something like elReg_vulture_icon.jpeg, but even that doesn't guarantee that the document actually matches the description.

    1. The First Dave Silver badge

      Indeed. Prosecutions against the likes of PB have always relied on laws regarding incitement and/or 'being an accessory' so there I can see no need for the law to cover individual hyperlinks.

    2. Sorry, you cannot reuse an old handle.

      The closest analogy that fits this picture is that of receiving an email with an attachment while at the office. Do you double-check that the sender is the author or that otherwise he had permission to distribute that document? Do you ask each time for permission to redistribute that document in case of reply or forward or even when printing or saving that document to "your" computer or to a network share?

  8. Jonathan Carlaw

    Hyperlink

    I'm not sure on this one.

    A plain text version of the web address (IE Just the text, which someone then needs to copy & paste into a browser to use) is the 'sign'.

    A Hyperlink is more than just a sign saying "You can find 'X' here" - it is also forms a mechanism to "get" that object. To use the "dodgy DVD at the market" analogy, a Hyperlink is more akin to saying "I know where you can get a copy of that DVD, here, let me fetch one for you".

    What I can't decide is if this distinction makes it copyright violation.

    1. Dr. Mouse Silver badge

      Re: Hyperlink

      a Hyperlink is more akin to saying "I know where you can get a copy of that DVD, here, let me fetch one for you".

      I disagree.

      A hyperlink to a site which contains pirated material, I am providing directions to the stall where the guy is selling DVDs. The person still has to follow the directions (it's known as following a hyperlink for a reason).

      If I hyperlink to the actual material, I am providing directions to the stall and the precise location of that DVD at the stall.

    2. Doctor Syntax Silver badge

      Re: Hyperlink

      "What I can't decide is if this distinction makes it copyright violation."

      I doubt it. In one case you're providing a URL which has to be copied into the browser, in the other you're providing a small bit of extra wrapping which allows the browser to automate the process. The information is the same, the presentation is different.

      1. Thoguht Silver badge

        Re: Hyperlink

        Quite so, in exactly the same was as if I publish a map of London, I am giving precise directions on how to get to the Bank of England and the Crown Jewels.

  9. davenewman

    Hyperlinks are references, just like in academic papers

    a href shows exactly what 'links' were designed to do - provide hypertext references, along the lines of references in academic publications, including all law journals.

    It took a lot of public relations work and shady lawyers to change that definition into something that might fall under copyright laws.

    Lets stick to the definitions and intent of the inventors of the World Wide Web, who put the reader first, and content providers as servants, not masters of the people.

    1. Dan 55 Silver badge

      Re: Hyperlinks are references, just like in academic papers

      ... and it also leads to monstrosities such as a publisher banning "deep linking" because the hyperlink falls under the publisher's copyright.

      You can no more copyright a hyperlink than you can a telephone number. At least in a sane world.

  10. Anonymous Coward
    Anonymous Coward

    I love it when the comments are at loggerheads with the sensationalist title

    Hyperlinking is not infringement, full stop.

    Whomever hosts content is responsible for any legal entanglements that might arise, and if it's hard to prosecute then too bad, so sad.

    BTW there is gold in Fort Knox and money in banks. OMG infringement!

    This secondary infringement concept is also pure fiction, you either host content or you don't. If you want to construct this silly argument where hyperlinking is infringement then I'll point out that the ISP is storing those illegal bits in its buffers and switches and thus they have possession of an illegal copy.

  11. Charles 9 Silver badge

    Perhaps one key difference is that a URI is machine-readable and its contents could be retrieved without your express consent (for example, an inline image in a web page). That's where the copyright bit gets tricky because there's no real-world analog that makes sense here. It's not like you go out to retrieve something but your car commits infringement on the side, but a web browser could literally do that.

  12. Anonymous Coward
    Anonymous Coward

    This is what happens...

    ... if you let people make laws about topics they hardly know anything about. Then you get stuff which sounds perfectly reasonable in theory, but as soon as its being put to the test then the whole thing comes crumbling down.

    To me this is no different from politicians which make certain laws which contains so many errors and technicalities that a lawyer can easily rip it to shreds.

  13. IHateWearingATie
    Headmaster

    If copyright breach is a criminal matter in a juristiction...

    ... then aiding and abetting the copyright breach by telling people where to access it *could* be an offence I expect. Not a copyright breach itself, but still a potential crime. That fits with some of the examples above, e.g. by pointing a mate towards a guy who will sell him dodgy DVDs you can imagine an offence could be defined that covered that.

    Of course, if it is a civil matter then something else may apply. I think part of the issue is that Latin law systems are fundamentally different to our common law approach and don't always make sense to me.

    1. Anonymous Coward
      Anonymous Coward

      It is not unknown for searches, either global or via site facilities, which return some of the content of someone's protected page. When you try to follow the link you get a "403" or a paywall.

      In this current discussion the copyright laws appear to have been broken by the search engine.

      1. tiggity Silver badge

        Lots of paywall sites explicitly allow well known search bots to snippet spider their pay to view content - they want snippet of it to appear in search results as they then have chance of monetizing click through. Most paywall sites rely on search links to give potential new subscribers.

        It's quite easy to allow certain spiders in & force Joe public to your paywall.

        Simple tests would be on user agent (but iffy as someone could fake being a search bot to get at your non free data), most major paywall sites will also check the IP address of the bot to check it;s in appropriate IP range to avoid user agent spoofs.

        The ones where you get paywall are likely intentional by publisher, 403 could be down to publisher changing permissions on that link or buggy web site and it shoudl have sent you to paywall page but failed

        Though some 403 stuff is also down to geographic restrictions, so content could happily be indexed by e.g. US bot, visible by US web surfer but not available to EU user

    2. Sorry, you cannot reuse an old handle.

      Re: I love it when the comments are at loggerheads with the sensationalist title

      I also don't get why someone might be infringing by simpy putting some text or some files on a website. Do libraries infringe copyright? Some text or file in on display on a website, so what? I can take a peek the same way that I do in a library and if you even consider that you can borrow books from a library...

      Why can't I read that copyrighted text on a webpage? (files might be a different story since you have to "download" / copy them on your computer in order to actually open them - but what about online PDF readers?)

      At what point is the website actively distributing the content? Is a library actively putting the books for everyone to read? Where's the difference?

  14. Anonymous Coward
    Anonymous Coward

    Links ?

    To clarify this opinion piece, maybe you could provide links to some of these links that need to be copyrighted ?

    Aaaaah !

  15. BJC

    Is it re-publishing?

    N.B. I am most decidedly NOT a lawyer.

    I'm happy to comply with sensible copyright and republishing protected material is wrong. I want my material protected so I need to be prepared to respect the property of others.

    OK, it's not about the actual link. It could be a nice descriptive link, a redirection link, a self-evidently broken link that's easy to fix, or even search expression text. The point is that the distribution of the "link" is making it available a different "public". I read this as making it available to a new audience. We might better describe making it available to a new audience as re-publishing.

    If I post material on a public facing web site, under my control, I consider that publishing publicly. The technicalities of the web require that each visitor copies the material to their own clients systems to view the material. That would seem to have an implied acceptance by the author. However, if the visitor makes the files available on a different site that would seem to be re-publishing the material and I (as the author) might, reasonably, consider this a violation.

    Now, what if I put files on a public facing web site and share a link privately with friends? This doesn't change the fact that it's available to anyone who stumbles upon it. If the link becomes known to others and is shared, that would reach a new audience (i.e. no longer just my friends). Of course, at any time I can add some authorisation method that restricts access. That is, the material is still under my control and I'm not guaranteeing that the link will reach the material at any given time.

    So, for me sharing the link is fine because the material is still under the control of the author. However, sharing the material (i.e. re-publishing) is a violation.

    Just my 2p.

  16. Justicesays
    Unhappy

    How dare the EU court follow their own interpretation of the original treaty

    Don't they understand they should take into account decades of vested interests piling their own interpretations on top of it?

    otherwise what was all that lobbying cash, payments to copyright "think tanks" and grants to "IP" academics for?

  17. Panicnow

    INtelectual property IS theft!

    Once patent and copyright was a sparingly applied state sanctioned monopoly. In order to protect special cases.

    Now it is a "RIGHT" claimed by corporates to extort monopoly rents way beyond their need for protection.

    Once again through corporate lobbying, the length of time of some "Rights" have been extended. This is theft from the public, not "Defence of Innovator!

    1. Charles 9 Silver badge

      Re: INtelectual property IS theft!

      Of course it's a right. That's why it's called "COPY-RIGHT".

  18. CJ_C
    Coat

    Meh

    You mean like Google and Pirate Bay? Indeed nothing seems to be done about YouTube publication of material in breach of copyright, unless the holder has signed a restrictive agreement, by Google the owners or by any authority. I wonder why not?

    1. Mark 85 Silver badge

      Re: Meh

      I'm wondering if Google will seize this and use it in their wrangling with the EU courts on "takedowns", etc.? If pushed a bit, I could see where this ruling could effectively kill Google and any other search engine.

  19. Phil Bennett

    Lack of control

    If I publish a link to a site that contains something freely distributable, then the naughty server admin changes the content of the site to something that infringes copyright, should I really be criminalised?

    A link isn't the content. You can deal with copyright content by attacking the source (whackamole might make this difficult).

    A link with the description "get the latest Hollywood blockbuster here" might be an incitement, abetment, or whatever, but the link itself isn't illegal, its the combination of content and description (I'm not sure of it would still be an infringement if the link didn't go to copyrighted content, in the same way selling harmless substances as drugs is still illegal).

    It should come back to everyone's favourite argument "significant non infringing uses", which is why TPB gets prosecution while www.google.com/#q=torrents does not.

    1. Charles 9 Silver badge

      Re: Lack of control

      "A link isn't the content. You can deal with copyright content by attacking the source "

      And if the source turns out to be a hostile nation that invokes sovereignty?

  20. Bob Rocket

    Nice work...

    WIPO executive pay was 19 million dollars in 2013, protecting Intellectual Property rights sure is a lucrative business (less so for the property owners).

  21. ben kendim

    How about the rot-13 of a hyperlink?

    Does that violate copyright if the target contains copyrighted material?

    Ridiculous that anyone could think hyperlinks could violate copyright.

    1. Sorry, you cannot reuse an old handle.

      Re: How about the rot-13 of a hyperlink?

      A translation (ie different encoding) of a copyrighted book is still covered by the original copyright...

  22. bep

    Yeah well

    First of all, the only way anyone can 'steal' my family photos is by breaking into my house and taking the shoe box they are stored in. Someone may be able to COPY digital COPIES of such photos, but that doesn't cause me to lose them.

    On the other hand, I agree most of the analogies to hyperlinking fall down. The hyperlink isn't just a pointer, it's also often the means for accessing and downloading the content, regardless of where it is hosted. So it matters if the hyperlink takes you to a page from which you may download the content. or directly to the content itself. That would seem to make a big difference in this context.

  23. Mephistro Silver badge
    Devil

    Please tell us, Andrew...

    ... does the following sentence sound familiar to you?

    "The leaked documents can be found HERE."

    (Where 'HERE' is a hyperlink)

    Does this ring a bell?

  24. DropBear Silver badge
    WTF?

    Sanity has left the building

    When I find The Register seriously advocating FOR copyright on hyperlinks I'm starting to seriously, seriously question why the hell I'm still reading it at all.

  25. ratfox Silver badge
    Black Helicopters

    "Pirated stuff can be found easily on the internet"

    ...I bet the MPAA is coming for me...

  26. Adalat

    What is new about the internet is the ephemeral nature of the content, and the ease and speed with which it can be copied. Copyright law generally has not caught up with these factors, so to that extent the CJEU does have scope to be creative (as do other jurisdictions). The disruption can be seen (for example) in Wikipedia's article on Copyright, in particular the second paragraph explaining the weight given in existing law to copyrightable content being in some fixed physical form, and inconsistencies between jurisdictions on that point. Put it another way, you can copyright a book, but can you copyright a story? That seems to be a moot point. It also observes that copyright in many places is a civil matter anyway, protection by legislation is by no means universal. If a "book" or "movie" is originally created in digital form, and never put to paper or celluloid, there are already jurisdictions where copyright law is a hollow threat.

    We also need to be careful of the distinction between copyright and right to privacy, which is a separate issue.

    I think there are valid physical analogies because although the internet is new, the human behaviour is at least as old as writing. If a hyperlink is (or is deemed to facilitate) a breach of copyright, where does that leave a public library catalogue?

    1. Charles 9 Silver badge

      "If a hyperlink is (or is deemed to facilitate) a breach of copyright, where does that leave a public library catalogue?"

      Bad example as libraries typically possess legal exemptions from copyright enforcement because of their specific function. Meanwhile, a card catalog does not possess inline information that can retrieve the actual content as you retrieve the card. An online catalog might do this, though, via inline data that's retrieved by the computer and then displayed for you.

      1. Adalat

        No, the point is that a library catalogue enables access to the content. As does a hyperlink. To replicate the situation physically, let's do a thought experiment: it would be possible these days to build a library with a robot to fetch a book off its shelf and put it on a desk for you to read (there are modern warehouses that fetch stock and load trucks this way). Would that breach copyright?

        Libraries do have exemptions, but only for educational or non-commercial use. You breach copyright when you photocopy the book to avoid buying it.

        1. Charles 9 Silver badge

          "No, the point is that a library catalogue enables access to the content. As does a hyperlink. To replicate the situation physically, let's do a thought experiment: it would be possible these days to build a library with a robot to fetch a book off its shelf and put it on a desk for you to read (there are modern warehouses that fetch stock and load trucks this way). Would that breach copyright?"

          No, because we do not have a matter replicator yet. Following the hyperlink produces a COPY of the target in question. Since COPYing is involved, copyright is automatically invoked.

          "Libraries do have exemptions, but only for educational or non-commercial use. You breach copyright when you photocopy the book to avoid buying it."

          That's YOU, though, not the library. They're exempt from the redistribution restriction, for example, because (a) they're usually public, as in government-run, facilities, and (b) that's their purpose for existing: a middle ground between full lock-and-key and full public domain, a way to allow some additional exchange of information as mandated in the Constitution while still respecting copyright that helps to encourage new works being made. Rental houses an Redboxes have to buy special rental copies of movies at higher rates from publishers (so that publishers recoup lost sales), but libraries don't always have to, especially if some of their stocks are donated.

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