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Noah Ross
Noah Ross

Internet Hyperlinks Do Not Infringe Copyright, EU Court Advised Fixed


A link to a website which publishes photos without authorisation of the author does not in itself constitute a copyright infringement, an adviser to Europe's top court said on Thursday.




Internet hyperlinks do not infringe copyright, EU court advised



Although the circumstances at issue are particularly flagrant, the advocate general considers that, as a general rule, internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the internet was done with or without the consent of the holder of the copyright. If internet users risk liability for copyright infringement every time they place a hyperlink to works which are freely accessible on another internet site, they would be much more hesitant to post those links, to the detriment of the proper functioning and very architecture of the internet as well as the development of the information society.


When someone infringes copyright, there are various courses of action that could be taken by the individual or organisation that owns or administers the copyright. The user of the image may be asked to purchase a licence, and a commercial arrangement might be reached after which no further action is taken. However, legal action might be taken by bringing a claim in court which could result in having to go to court for a hearing.


If someone takes a photo, copyright can exist in that photo. If someone takes a photo of a work protected by copyright, and the work forms an essential part of the image, using that photo on the web is likely to be an infringement of copyright. In other words, people are allowed to take a photo of a room of paintings, provided the inclusion of such paintings in the photo was merely incidental (e.g. they formed inessential background). However, you would need to be careful about copyright infringement if taking photos of specific paintings.


The courts have ruled that internet users should be free to share links to material, for example photos or videos, providing the material itself has been published online with the permission of the rights holder. The right to share links however does not go as far as allowing users to share links that are designed to circumvent paywalls or other subscription only services.


Allowing rightholders to pursue copyright infringement action against those providing hyperlinks instead of just those individuals who actually post the infringing content would greatly threaten how the internet has evolved into a giant communication and information sharing technology. Instead of pursuing action to simply remove infringing content through takedown processes, rightholders may have an incentive to go after deeper pockets like news outlets or major technology companies. Hopefully the courts will come to their senses and protect the delicate balance between preserving the rights of rightholders and encouraging freedom of speech and innovation.


When the database structure or its contents is subject to copyright,reproducing, distributing, or modifying the database will often berestricted by copyright law. However, it is important to note that someuses of a copyrighted database will not be restricted by copyright. Itmay be possible, for example, to rearrange or modify the uncopyrightabledata in a way that does not implicate the copyright in the databasestructure. For example, while (as noted above) a court in the UnitedStates held that a directory of Chinese-American businesses wasrestricted by copyright, the same court went on to hold that a directorythat duplicated hundreds of its listings was not infringing because thelistings were categorized and arranged in a sufficiently dissimilar way.In those situations, compliance with the license conditions is notrequired unless the database contents are themselves restricted bycopyright.


A disclaimer is not a cure-all for infringement, but if a disclaimer is prominently displayed and written a court may take it into consideration as a factor limiting damages. For example, in a case involving a dispute between websites for two restaurants, both named Blue Note, one factor that helped the lesser-known restaurant avoid liability was a prominently displayed disclaimer stating that it was not affiliated with the more famous restaurant. (Benusan Restaurant v. King, 937 F.Supp. 295 (S.D. N.Y. 1996).)


While the judgment is a UK court judgment, it considers principles in both UK and European law and could have far-reaching consequences. If a similar approach were to be taken by the European courts or indeed if the rightsholders were to issue proceedings in the UK courts against UK based stations with regard to infringements in Europe, the UK licensed stations which are not geo-blocked outside the UK could find themselves in difficulty with regard to territories where they do not have a licence to broadcast, but are available via TuneIn or similar services.


Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. Egregious or large-scale commercial infringement, especially when it involves counterfeiting, is sometimes prosecuted via the criminal justice system. Shifting public expectations, advances in digital technology and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online,[citation needed] and more on expanding copyright law to recognize and penalize, as indirect infringers, the service providers and software distributors who are said to facilitate and encourage individual acts of infringement by others.


Copyright holders frequently refer to copyright infringement as theft, "although such misuse has been rejected by legislatures and courts".[12] The slogan "Piracy is theft" was used beginning in the 1980s, and is still being used.[13][14] In copyright law, infringement does not refer to theft of physical objects that take away the owner's possession, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.[15] Courts have distinguished between copyright infringement and theft.[12] For instance, the United States Supreme Court held in Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property. Instead,


In the U.S., copyright infringement is sometimes confronted via lawsuits in civil court, against alleged infringers directly or against providers of services and software that support unauthorized copying. For example, major motion-picture corporation MGM Studios filed suit against P2P file-sharing services Grokster and Streamcast for their contributory role in copyright infringement.[33] In 2005, the Supreme Court ruled in favor of MGM, holding that such services could be held liable for copyright infringement since they functioned and, indeed, willfully marketed themselves as venues for acquiring copyrighted movies. The MGM v. Grokster case did not overturn the earlier Sony v. Universal City Studios decision, but rather clouded the legal waters; future designers of software capable of being used for copyright infringement were warned.[34]


Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages.[10] Some jurisdictions only allow actual, provable damages, and some, like the U.S., allow for large statutory damage awards intended to deter would-be infringers and allow for compensation in situations where actual damages are difficult to prove.


The first criminal provision in U.S. copyright law was added in 1897, which established a misdemeanor penalty for "unlawful performances and representations of copyrighted dramatic and musical compositions" if the violation had been "willful and for profit".[38] Criminal copyright infringement requires that the infringer acted "for the purpose of commercial advantage or private financial gain" (17 U.S.C. 506). To establish criminal liability, the prosecutor must first show the basic elements of copyright infringement: ownership of a valid copyright, and the violation of one or more of the copyright holder's exclusive rights. The government must then establish that defendant willfully infringed or, in other words, possessed the necessary mens rea. Misdemeanor infringement has a very low threshold in terms of number of copies and the value of the infringed works.


The United States No Electronic Theft Act (NET Act), a federal law passed in 1997, in response to LaMacchia, provides for criminal prosecution of individuals who engage in copyright infringement under certain circumstances, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines. The NET Act also raised statutory damages by 50%. The court's ruling explicitly drew attention to the shortcomings of current law that allowed people to facilitate mass copyright infringement while being immune to prosecution under the Copyright Act.


Proposed laws such as the Stop Online Piracy Act broaden the definition of "willful infringement", and introduce felony charges for unauthorized media streaming. These bills are aimed towards defeating websites that carry or contain links to infringing content, but have raised concerns about domestic abuse and internet censorship.


The debate has shifted away from questions about liability for specific content, including that which may infringe copyright, towards whether online intermediaries should be generally responsible for content accessible through their services or infrastructure.[54]


These types of intermediaries do not host or transmit infringing content, themselves, but may be regarded in some courts as encouraging, enabling or facilitating infringement by users. These intermediaries may include the author, publishers and marketers of peer-to-peer networking software, and the websites that allow users to download such software. In the case of the BitTorrent protocol, intermediaries may include the torrent tracker and any websites or search engines which facilitate access to torrent files. Torrent files do not contain copyrighted content, but they may make reference to files that do, and they may point to trackers which coordinate the sharing of those files. Some torrent indexing and search sites, such as The Pirate Bay, now encourage the use of magnet links, instead of direct links to torrent files, creating another layer of indirection; using such links, torrent files are obtained from other peers, rather than from a particular website.


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