​​The Court of Justice of the European Union ruled on September 8, 2016 that websites that merely link to infringing material (instead of copying it) can be liable for copyright infringement. If this decision, GS Media BV v. Sanoma,1 stands, it threatens to disrupt common practices on a wide variety of websites and social media platforms.

Many Clients Have Assumed That Merely Linking to Material Will Not Expose Them to Liability for Copyright Infringement.

One of the powerful features of the web is the ability to have one website link to material on another website or server. While many links are to material or pages on the same website or server, it is common to link to third parties’ material. For consumer-facing companies, linking to third party material has also grown popular through social media. In some instances, it may not be obvious to the viewer whether the material (for example, a photograph or video) that appears through a website is an actual copy of the material or just a link to it.

As the web has matured, many companies have come to believe that linking instead of copying is unlikely to make them liable for copyright infringement, regardless of whether the linked material is authorized by the copyright owner or not. In the United States, copyright owners have claimed infringement by defendants who have linked to or framed their material on the defendants’ own websites. But no court in the United States has squarely held that mere linking is copyright infringement.2

In Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003), the Ninth Circuit held that a search engine’s linking to third party photographs while showing smaller “thumbnail” images with the search results was fair use. Among other reasons, the links were not for the purpose of replacing photographs in the marketplace. If anything, the links would lead people to photographer’s works. The court did not decide, however, that all links or links that show full-size images would escape liability for copyright infringement.

Four years later, the Ninth Circuit again considered the copyright implications of linking. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). Plaintiff Perfect 10, which owned pictures of naked women, claimed that defendant Google’s search engine infringed by linking to unauthorized copies of those pictures on third party websites. The Ninth Circuit emphasized that Google computers did not store copies of the plaintiff’s photographs:

Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image.

Id. at 1161. The court held that this linking could not constitute direct infringement under copyright law even if some viewers of the web page might be confused about who owns the linked material.

Importantly, the Ninth Circuit in Perfect 10 did not decide whether the linking was contributory infringement and remanded the question for further proceedings. “One infringes contributorily by intentionally inducing or encouraging direct infringement… and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it . . . .” MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). “Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps.” Perfect 10, 508 F.3d at 1172. As to vicarious infringement, regardless of whether Google profited from the links, the Ninth Circuit held that Google was not vicariously liable because it had no power to stop the infringement. Moreover, “[w]ithout image-recognition technology, Google lacks the practical ability to police the infringing activities of third-party websites.” Id. at 1174.

The law in Europe has been less uniform, but many decisions have supported linking as not being copyright infringement. For example, in 2003, a German court decided that German copyright law permitted listing a link that does not reproduce, distribute, or communicate the other party’s content. Holtzbrinck v. Paperboy, I ZR 259/00 (Fed. Ct. Justice (BGH) 2003). The European Court of Justice later decided that inline linking (that is, where the viewer would see publicly available third party material on the webpage) is not copyright infringement because the linking is not communicating the material to a “new public” that did not already have the ability to view the material online. ECJ, Svensson, and Others v. Retriever Sverige AB, Case C-466/12 (ECJ Feb. 13, 2014) (links to articles), available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=7778 ; BestWater Int’l GmbH v. Michael Mebes and Stefan Potsch, Case C-348/13 (ECJ Oct. 21, 2014) (links embedding videos), available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=159023&pageIndex=0&doclang=DE&mode=lst&dir=&occ=first&part=1&cid=966527. The BestWater court explained that “embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology . . . does not by itself constitute communication to the public within the meaning of [the EU Copyright directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication.” Without communication to a new public audience, the link could not be infringement.

In light of the previous case law, many companies have assumed that linking to third party material poses little risk of infringement liability. But as explained below, the GS Media decision highlights the distinction between linking to material on a copyright owner’s server (as in Kelly, Svensson, and BestWater) and linking to infringing material that is on a third party’s server (as in Perfect 10).

The Dutch website GeenStijl publishes what it describes as “news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense.” Playboy publishes original photos, most famously of scantily clad or nude women. In a 2011 article, GeenStijl linked to an Australian website, among others, that had obtained copies of Playboy photos that someone had leaked prior to their official publication by Playboy. Playboy aggressively sought the takedown of various websites that had copies of its photos. As these takedowns occurred, GeenStijl allegedly updated its webpage with links to other websites that still had copies of the Playboy photos available.

The GS Media Court Decides That Linking Can Constitute Copyright Infringement if the Linking Party Knows or Reasonably Could Have Known That the Linked-To Material Is Infringing.

The GS Media court (Europe’s highest court of appeals) decided that GeenStijl could be liable under the relevant European copyright law, Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001.

In line with prior case law, the GS Media court acknowledged “that hyperlinks contribute to [the Internet’s] sound operation as well as to the exchange of opinions and information in that network.” The court also acknowledged the difficulty “for individuals who wish to post such links, to ascertain whether [a] website to which those links are expected to lead, provides access to works [that] the copyright holders… have consented to… posting on the internet.” “Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.”

In light of GeenStijl’s active updating of links to photos on third party websites even as Playboy succeeded in getting them removed from other third party websites, the court distinguished Svensson and BestWater. According to the court, in those earlier cases, “the copyright holders of that [linked] work have consented to such a communication” to “all internet users as the public.” But where a person providing a link “knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1)”—that is, a new and infringing communication of the material to the public.

What is troublesome is that, beyond the specific facts in GS Media, it is not clear how a court would decide that someone providing a link “knew or ought to have known” that the link is to unauthorized material. The court imposes a duty, for the first time, on whoever provides links to check the legitimacy of the linked material:

[I]t can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1).

Moreover, the court appears to presume ill intent if the party providing links does so for “pursuit of financial gain”: “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.” While the court stated that an alleged infringer could try to rebut the presumption, the burden has clearly shifted to the linker to demonstrate its lack of knowledge that the linked material is infringing, thus leaving the linker with the difficult task of proving a negative.

Notably, the court did not follow the April 7, 2016 Opinion of the Advocate General in the case, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=175626&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=968083. Following BestWater and Svensson, the Advocate General had decided that (1) “the posting on a website of a hyperlink to another website on which works protected by copyright are freely accessible to the public without the authorisation of the copyright holder does not constitute an act of communication to the public” that could constitute infringement; (2) “it is not important whether the person who posts on a website a hyperlink to another website on which works protected by copyright are freely accessible to the public is or ought to be aware that the copyright holder has not authorised the placement of the works in question on that other website or that, in addition, those works had not previously been made available to the public with the copyright holder’s consent”; and (3) a hyperlink to another website on which works protected by copyright are freely accessible to the public, which facilitates or simplifies users’ access to the works in question, does not constitute a ‘communication to the public’” that could constitute infringement.

Although the European Court does not have worldwide jurisdiction, GS Media implicates the operation of any website that may have a European audience. The decision is an important development even for companies in the United States.

GS Media does not alter the fact that the safest linking is to material that you own or have licensed. That may be practical for material that you intend to display prominently and long-term on your website. But that may be impractical for other material that is cross referenced for your user’s convenience or that has such a short shelf life of interest to the user that timely licensing is impossible.

GS Media does not alter the risk of linking to material directly on the copyright owner’s server. Many companies may continue to view the risk of copyright infringement from that type of linking to be reasonably low.

GS Media does significantly increase the risk of copyright infringement from linking to third party material on a website or server that may not be operated by the copyright owner. If your company website or social media account arguably yields a financial gain (such as by allowing advertisements or promoting your company’s products or services), GS Media makes it even more important to investigate whether the availability of the linked material on the third party server or website is authorized. But even if your linking is not for financial gain, it remains to be seen how courts will interpret how the linking party “ought to have known” that linked material was infringing.

In GS Media, it was clear that the defendant Geenstijl was itself posting the links to the Playboy photos, and the court therefore concluded it would be correct to place the burden on it for determining whether the material it had chosen to link to was authorized, in view of the fact that Geenstijl was deriving financial gain from the linking. As onerous as even that burden might be, a much more difficult question that is left unclear by the GS Media decision is whether the operator of a social media platform is responsible for investigating whether material that its users may choose to link to is infringing. Such a burden would be highly impractical or impossible for sites on which users post thousands or millions of links daily.

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