|After the CJEU, |
it's now the turn of national courts
Here's what Sascha writes:
|Profit-making intention: |
what is it all about?
|Crystal ball-gazing: |
added by GS Media?
The good news for the linking community is that this was only a decision rendered in the context of an interim injunction application. Another court might have taken a different view. In addition, the particular facts of the case might have influenced the decision in favour of the rightholder (as this may have been the case in GS Media), as the respondent emphasised that he was not willing at all to check to ensure in advance that the photo concerned had not been illegally published on the website to which the subject hyperlink led. He asserted that he was aware of the GS Media decision when he set the link, but that he considered himself not to be bound to any such obligations imposed by the CJEU, as the decision, in his opinion, would not comply with the German Constitution.
Unfortunately, this case will not be finally decided by the German Federal High Court (Bundesgerichtshof) on the merits, as the respondent accepted the order as binding.
It might take a long time until we will finally know what the CJEU meant by “carried out for profit”, unless the EU legislature will provide precise legal provisions on linking before that. One solution could be, as a basic rule, to implement for linking a notice-and-take-down procedure by law, not only for websites which lack any commercial background but also for websites which are run for profit. If the person who set the link had full knowledge of the protected nature of that work and the lack of consent to publication on the internet by the rightholder (as this might have been the case in GS Media), its liability should be triggered without need of a separate notification. The further details should be cleared by the EU legislature instead of leaving this to the CJEU’s interpretation, being aware that some issues remain to be decided on a case-to-case basis (e. g. what does “full knowledge” mean in particular cases)."
Thanks so much Sascha for this thought-provoking commentary!