The great debate continues: is it an infringement of copyright to link to third party content? And does it matter whether that content is itself infringing or not, or whether the person providing the link is making a profit from their website? A quick recap on what the courts have found recently: in the US it is ok to link to infringing content, but it might not be in the UK, and in Canada it is ok to link to non-infringing content.
Last week the Dutch Courts gave their view on the issue: in the Netherlands can be an infringement of copyright to provide a link to an infringing photograph.
The Court held that while linking to a photo does not infringe in itself infringe copyright in that photo, there are a number of factors which must be taken into account and which may cause copyright infringement. In this instance it was relevant that the public was not aware of the existence of the leaked photos before GeenStijl published the link, and that the public would not have had access to the photos had GeenStijl not published the link.
The Dutch Court also took into consideration the fact that GeenStijl is an ad-supported website, which would profit from posting the link, as it would attract more visitors to its site.
These two factors served to make the link infringing.
So let’s say you have a search engine. Is it possible to write code to prevent infringement by this definition?
Maybe you can check that some image is new to the public, if it’s out there but nobody is linking to it or copying it. But how can you distinguish things that people won’t care about ever from things that people don’t care about yet?
You’re ad-supported. You profit from posting the link. So there’s no way for a search engine to escape that test.
In a case like this I think that what happens is a “jerk” test: the case law is only intended to apply to jerks. Nice-guy companies will be excluded. That’s what has happened with file hosting services. Compare Megaupload to Dropbox. Megaupload came across as sleazy and exploitive, Dropbox comes across as upstanding and decent. The law is the same, their actions are nearly the same, the outcome is totally different.
Granted, the idea of the rule of law is that the law is intended to be the same for everybody.