Over in Europe, the Court of Justice of the European Union (CJEU) has recently been hyperactive in the area of hyperlinking and copyright, at least as compared with the United States. The CJEU issued a much-anticipated ruling in September concerning hyperlinking’s legality in GS Media v Sanoma Media Netherlands and Others (C-160/15). It held that posting a hyperlink to a site where a copyrighted work is being displayed without the copyright owner’s consent does not necessarily violate the copyright owner’s right to authorize or prohibit any “communication to the public” under the relevant European directive (EU Directive on copyright and related rights in the information society 2001/29/EC, or the “InfoSoc Directive”). Rather, a person posting such a hyperlink makes only a “communication to the public” where that person has knowledge that the site to which it linked did not have permission to display the copyrighted work. If the hyperlink was posted for “financial gain,” the court will presume the person posting the link knew this fact. The presumption is then rebuttable by the one posting the link.

While the decision acknowledges that the internet is “of particular importance to freedom of expression and of information” and that “hyperlinks contribute to its sound operation and to the exchange of opinions and information,” it has been criticized for nothing short of potentially disrupting the flow of information over the internet as we know it. Critics deduce that many or most websites could fall into the category of linking for “financial gain” and therefore will be presumed to know they linked to a site with unauthorized content simply by placing a hyperlink.

The GS Media decision came after two 2014 CJEU decisions had already muddied the answer to the question whether hyperlinking is a “communication to the public.” Svensson v Retriever Sverige AB (C-466/12) and BestWater International (C-348/13) allowed linking to works freely available over the internet, but not ones, for example, behind a paywall. This was accomplished by the following reasoning: hyperlinking is a “communication to the public” for purposes of the InfoSoc Directive, but not where the works are originally freely available online because the hyperlink does not, then, communicate to a “new public.” BestWater extended this reasoning to cases where the link is accomplished by “framing” or access through a small frame of the linked-to site.

An Advocate General (AG) opinion in advance of the GS Media decision broadly suggested that linking should be considered outside of the scope of copyright and not a “communication to the public.” In GS Media, the CJEU chose not to follow the AG opinion, nor did it follow the reasoning in Svensson, which had led copyright holders to conclude that limiting access to their online works affects whether someone can link to them.

The context of the GS Media case might be helpful in understanding the CJEU’s decision. GS Media operates a Dutch site providing “news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense” called GeenStijl. GeenStijl received information about an Australian website where pictures of a Dutch celebrity could be downloaded—pictures that had been slated to be published in Playboy. When Sanoma, the publisher of Playboy, asked GS Media to prevent the photos from being published on the GeenStijl website, GS Media instead included part of one of the pictures and a link to the Australian site where they could be downloaded. Sanoma asked GS Media to remove the link and material, and it removed only the picture. After the photos were removed from the Australian site, GeenStijl published another article linking to another site where the photos could be viewed. In other words, that GeenStijl understood that the photos were unauthorized was not a question for the court. Contrasting these facts with the situation where a website merely links to another without conducting diligence or asking for permission, there are many questions raised by this ruling about what a company need do in order to overcome a presumption that it had knowledge that the site to which it linked was infringing.

In the United States, rather than a “communication to the public,” Section 106 of the Copyright Act grants copyright holders six rights, including public performance, public display, reproduction, and distribution. The public performance right is defined in Section 101 as “to transmit or otherwise communicate a performance … of the work … to the public … whether the members of the public capable of receiving the performance … receive it in the same place or in separate places and at the same time or at different times.”

Under U.S. case law, the mere provision of a link—a connection between the source of the material and the viewer—without more does not give rise to a direct infringement claim. In 2007, the Ninth Circuit decided Perfect 10, Inc. v. Amazon.com, Inc. and considered the links that appear in a Google search. The court noted that “Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act … and thus cannot communicate a copy.”

In a 2012 Seventh Circuit decision FlavaWorks, Inc. v. Gunter, Judge Posner echoed this interpretation, stating:

To call the provision of contact information transmission or communication and thus make [defendant] myVidster a direct infringer would … make the provider of such information an infringer even if he didn’t know that the work to which he was directing a visitor to his website was copyrighted.

However, the same underlying concerns from GS Media—of a website earning a profit by encouraging infringing activity—have also concerned U.S. courts. If a link-er has knowledge of the infringing nature of material to which it linked, that fact is not ignored, but instead relevant to a claim of contributory infringement. But there is no presumption of knowledge. In the United States, a plaintiff must provide evidence that the link-er knew the material to which it linked was infringing. Without that evidence, or indeed any evidence that a link-er encouraged, assisted, or induced infringing activity, a plaintiff struggles to obtain even an injunction against the linking party.

These are the FlavaWorks facts. A website, myVidster, allowed its patrons to “bookmark” videos that were available over the internet on its site. MyVidster would then frame a link to the server that hosts the videos on its site. When users bookmarked videos that had been copied from FlavaWorks’ site (whose videos were behind a paywall), FlavaWorks sued myVidster for contributory liability—or, as the case put it, being “an infringer’s accomplice.” FlavaWorks, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012). The court suggested that the plaintiff could eventually obtain evidence that myVidster invited or encouraged people to post copyrighted videos without authorization or “bookmark” them on its site, including evidence that myVidster made financial gains off the links. But it overturned the lower court’s grant of a preliminary injunction against myVidster on the basis that there was no such evidence in the record at that time.

It seems the same concerns of knowledge, incentive, and intent are in the background of both the U.S. and EU approaches, although they have manifested themselves differently. As it stands, on account of the presumption, it is conceivable that posting a link may give rise to an infringement claim in the EU where it would not in the U.S. on the same facts. Whether the practical effect of GS Media leads to divergent methods of structuring websites or affixing links in different jurisdictions remains to be seen. We look forward to any further guidance, standards, or clarification of EU law on linking and infringement as well as its practical effect.