Compared to Svensson, GS Media is not that bad after all

The GS Media decision [see here and here] is under crossfire. Those who complained that the Court of Justice of the EU's (CJEU) decision in Svensson [here and here] was too liberal think that GS Media has overcome the boundaries of anarchy and made right holders' life impossible. Others are crying scandal for what GS Media will mean in terms of taking down links and endangering freedom of expression. Given the Svensson background, though, that decision is not as bad as it seems.

"A high level of protection..."

In Svensson [here and here], the Court addressed a simple question: can one link to a work that the author has uploaded on the internet? 'No doubt about it!', [almost] everyone would say. 'Yes', the Court replied, but making available includes giving access and, as linking gives access, a link is an act of "communication"/"making available" of the work. As such, linking could also become a communication to the public, under some circumstances. 

In the post-Svesson stress disorder that has been affecting the IP community [including Eleonora and this Kat, see here and here], everyone has been wondering what those circumstances might be. If the whole Svensson reasoning turns on the "public that was not taken into account by the copyright holders when they authorized the initial communication", the logical consequence seemed to be that copyright holders never take into account people accessing unauthorized works -- because they do not take into account unauthorized works, do they? Thus, an indefinite number of users accessing unlawful works are always a new public and, consequently, linking to unauthorized information always amounts to a "communication to the public". 

Accustomed to bureaucratic judgments and to the apparently unstoppable expansion of copyright's boundaries beyond what it is functional, reasonable, and enforceable, many were expecting another one of those CJEU's decisions starting with "any harmonisation of copyright and related rights must take as a basis a high level of protection..." -- and ending we know how.  

"Melchior - Way better than Bernie"

Melchior takes the floor

Then, Advocate General Melchior Wathelet took the floor. His Opinion in GS Media talks about "distinguishing", but sounds like "overruling". When it comes to linking to unauthorized contents, he noted, we should get rid of the new public criterion, or interpret it in a way that does not lead to the Svensson conclusions. Instead, the focus should be on other criteria among the many that the CJEU has pointed out while addressing communication to the public. Thus, despite differing from Svensson, linking [to infringing content] should generally not be considered communication to the public, because

"Posting of hyperlinks by users is both systematic and necessary for the current internet architecture…If users were at risk of proceedings for infringement of copyright … whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society",

That is a problem [also] under the EU Law, continued the AG, as concluding the contrary would

"Significantly impair the functioning of the Internet and undermine one of the main objectives of Directive 2001/29, namely the development of the information society in Europe. Such an interpretation could also distort the ‘fair balance of rights and interests between the different categories of right holders, as well as between the different categories of rightholders and users of protected subject-matter."

The CJEU #feelstheWath

In GS Media, the CJEU did not entirely follow Melchior’s reasoning, nor it could have. Stating that linking to authorized content is a communication to the public while linking to unauthorized content is not would have been paradoxical -- an unprecedented overrule of a previous, recent decision on very similar facts [overruling is traditionally alien to CJEU's case law -- European never change their minds]. 

Not really the CJEU's style.

Whilst taking "linking = communication/making available" as a given fact, though, CJEU Judges definitely #feeltheWath. Overcoming the Svensson approach, GS Media's reasoning starts from an uncontested fact:

"It may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected".

A CJEU's decision that starts from reality is already kind of news. Besides, the CJEU also found a way to strike a balance among private and public interests we have not been used to by its recent decisions. The meaning and the scope of communication to the public, the Court stressed, shall be defined in light of the InfoSoc Directive's objectives, like that to

"maintain, in particular in the electronic environment, a fair balance between, on one hand, the interests of copyright holders and related rights in protecting their intellectual property rights … and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information".

Does it sound political? It is. As political as it has been, in some earlier decisions, leaving aside the link provider's "conscious intervention" criterion, mostly ignoring the professional or non-professional nature of the infringers, and using copyright to cover whatever one could make or use over the internet.  

GS Media and the idea of a closer copyright 

With its hands tied by Svensson's principles, the CJEU could likely have done nothing better than GS Media. Further, in GS Media the Court shows a significant change of approach. Differently from many other cases, in GS Media the Court shows its intention to descend from the Ivory Tower. It tries to get its hands dirty with the reality of things and to balance Svensson's dangerous  "linking = communication" principle with public interests and with how things actually work and always will work, either copyright provides so or not. 

GS Media is significantly closer than Svensson to what the law should be. Not a bureaucratic, unenforceable bunch of rules designed regardless of what one could reasonably expect from a community, but a careful, reasonable guide that raises from, and develops within, a given social and technological context. It is not crazy to pretend that online newspapers check whether the content they link to is authorized. By contrast, no one could ever think that private users could always check and be aware of the legal status of content they link to. A decision or piece of legislation that imposes such an obligation would have no practical consequence but a huge loss of credibility towards a law requesting something that cannot be reasonably requested. 

Laws that communities do not share and do not believe in are harder to enforce and develop badly. That is why the political approach of the GS Media decision goes beyond the mere issue of linking. By substantially limiting Svensson's consequences, GSMedia made a little step to keep copyright alive.