In 2011, Dutch blog GeenStijl.nl published an article which linking to leaked Playboy photos which were stored on third-party hosting sites. Playboy publisher Sanoma said this amounted to infringement.
The European Court of Justice was asked to rule on whether the links posted by GeenStijl amounted to a ‘communication to the public’ under Article 3(1) of the EU Copyright Directive and therefore a copyright infringement.
In September the ECJ handed down its decision which drew a line in the sand between for-profit and not-for-profit linking.
Generally, a person who posts a casual link to a work freely available on another website isn’t expected to conduct research to find out whether the copyright holder has granted permission for that work to be there.
On the other hand, those who post a link within a commercial context are expected to carry out the “checks necessary” to ensure that the linked work has not been illegally published, the ECJ says.
The EU ruling has now been applied in a German case. It involved a photographer who discovered that one of his Creative Commons-licensed images had been posted on a website without the correct attribution. The photographer also found a third-party site that was linking to the infringing image.
Leipzig law firm Spirit Legal LLP says it represented the photographer in a case against the third-party site to discover how the ECJ’s earlier ruling would be applied under German law.
In a ruling handed down in November but just published by the law firm, the Hamburg Regional Court found that while the original publication of the image amounted to infringement, the operator of the third-party site that published the link to the image was also liable for infringement.
In part, liability was determined from the conclusion that the link communicated the infringing image to a “new audience,” outside that intended by the copyright holder.
On the commercial aspect previously cited by the ECJ, the Court found that no profit needed to be generated from the specific link, only that there was a general intent to benefit from the link on the site as a whole. Since that was the case, the website owner was responsible for carrying out the “checks necessary” to ensure that the image wasn’t infringing.
Finding the operator of the third-party website liable for infringement, the Court ordered him to cease providing a link to the photographer’s image or face a fine.
Dr. Jonas Kahl, a lawyer with Spirit Legal, says the ruling is important for anyone with online commercial interests.
“[T]he decision of the Hamburg Regional Court represents a massive tightening of their inspection obligations and their liability in itself,” Dr. Kahl explains.
“In order to exclude the possibility of a copyright infringement, in the future you should check, before each linking, whether the page operator has the necessary rights for the photos published there. If this is not the case, you should not link, if you do not want to take a liability risk.”
The full ruling is available here (PDF, German)