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Is Linking Illegal?

Posted on 9.08.2016

The Court of Justice of the European Union is concerning itself website links and it's generating a great deal of controversy and conversation.

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The court essentially decided that posting/publishing links without permission infringes copyright when the website doing so is seeking to profit from material published. At the center of this case is Playboy, which won its legal fight to stop a website from posting links to images published without permission.

The ruling caught many in the media off guard, particularly because the same court previously ruled that providing a hyperlink does not amount of an infringing act. The decision announced this week however attempts to draw a distinction between a hyperlink to another website that contained authorized and legitimate content. The ruling is limited to websites that provide a link as part of a for-profit activity, something that is going to be very disruptive to many in the news, media and e-commerce verticals that use links as part of their content initiatives.

Ron Moscona, partner at the international law firm Dorsey & Whitney in its London office, suggested that the court appears to be engaging in an "extreme form of judicial law making" and is doing so without basis to its ruling in the underlying legislation.

"The decision will have serious ramifications particularly to media outlets, as well as and many other for-profit website operators and internet search engines that provide links to other websites as part of their business, said Moscona.

"According to the court’s ruling, liability for infringement could turn on whether or not the website operator should ‘reasonably have known’ that the materials they linked to were posted without the rightholder’s consent. If providing hyperlinks risks infringing a third party copyright on the grounds of ‘deemed knowledge’, many website operators would prefer to sharply cut down on the use of hyperlinks on their sites in order to limit the risk of infringement. It is difficult to imagine a worse attack on the free flow of information through the internet," Moscona says.



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