tag:blogger.com,1999:blog-5574479.post7652139324880131003..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Hyperlinks and communication to the public: early thoughts on the GS Media decisionVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-5574479.post-4749649787930852882016-09-24T20:13:14.206+01:002016-09-24T20:13:14.206+01:00Your comments are extremely interesting but I thin...Your comments are extremely interesting but I think hyperlinks require to rethink about copyright.<br /><br />Copyright was created in order to offer authors/copyright owners with an artificial state of scarcity. This state of scarcity enables authors to put a price on the works they license. Therefore, the reproduction and performance rights were fully relevant before the digital world because works of the minds merged with their mediums. However, hyperlink present a challenge since there is no reproduction (see art. 5.1 of the Infosoc directive) nor performance of the copyrighted work. It is therefore necessary to find a new way to create a state of scarcity in favor of authors. <br /><br />The distinction that the Court made is relevant because it respects the principles on which the internet was built : a space free of laws and money. The GS Media case is consistent with that because it says that if you deal with the basic principles of the internet (i.e. you do not make money on it) you can freely link to contents online. However, if you make money on the internet and do not respect the 'spirit of the internet', then we will apply regular rules and you shall respect the artificial state of scarcity in favor of the author. Mickael Le Borlochhttps://www.blogger.com/profile/10004651989163153451noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38597534992464348012016-09-18T02:10:49.300+01:002016-09-18T02:10:49.300+01:00Re: Anonymous 13:37
OK - thanks; that was exactly ...Re: Anonymous 13:37<br />OK - thanks; that was exactly the point of my original question. Does seem as if the court has either a poor understanding of the internet or a loose use of language, especially for a judicial judgement.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12879277497187817212016-09-16T13:37:58.684+01:002016-09-16T13:37:58.684+01:00Re Anon 12.25
I think you are reading way too muc...Re Anon 12.25<br /><br />I think you are reading way too much into it. (1) The judgment uses the word link and hyperlink interchangeably (e.g. para 46). (2) A hyperlink will have the URL to the infringing content in the html script. So the issue of whether a website links to infringing content is not going to matter if the URL is in the HTML script for the hyperlink or simple text form is irrelevant. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-73495838586071935842016-09-12T08:46:33.021+01:002016-09-12T08:46:33.021+01:00Re-anonymous at 12:25
"Yes" - but how? S...Re-anonymous at 12:25<br />"Yes" - but how? Seems that the ECJ is saying that requiring a user to 'copy & paste' a 'text url' is not a communication to the public, while clicking on the same as hyperlink is! Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78314423527735219392016-09-11T12:25:18.752+01:002016-09-11T12:25:18.752+01:00Re-anonymous at 02:56:00 Yes.Re-anonymous at 02:56:00 Yes.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-59434199047356675952016-09-10T02:56:40.734+01:002016-09-10T02:56:40.734+01:00A (basic ?) question: the ruling refers to 'hy...A (basic ?) question: the ruling refers to 'hyperlinks'; would there be a difference if the link was purely text without the underlying 'activating' html?<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22360920490302571142016-09-09T09:20:15.415+01:002016-09-09T09:20:15.415+01:00Further to my comment of 17.50 yesterday:
Althoug...Further to my comment of 17.50 yesterday:<br /><br />Although the way that the ECJ has expressed itself in the operative part of the judgment tends to imply otherwise, the logic of their reasoning in the main body of the judgment is that for hyperlinks to unauthorised content there is basically one test: did the person posting the link know or should they have reasonably known that the content was unauthorised ("illegal")?<br /><br />The question of pursuit of profit then acts as a presumption in two directions:<br /><br />- those not pursuing profit are presumed not to know and thus will not be liable (but the presumption can be rebutted, eg if it is shown they were put on notice)<br /><br />- those pursuing profit are presumed to know and thus be liable (but this is in theory rebuttable, probably only in unusual circumstances).<br /><br />This leaves the problem of the implication otherwise in the operative part of the judgment - no doubt there are previous cases where there have also been such conflict between the summary and the reasoning?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-58139405193219807872016-09-09T06:31:03.347+01:002016-09-09T06:31:03.347+01:00I like this decision of the CJEU even more than ye...I like this decision of the CJEU even more than yesterday. It seems that via 'a person knew or ought to have known', for the first time, some sort of third-party protection is introduced with respect to the 'communication to the public'. It is particularly important for Internet space. The criterion for eligibility for such protection might refine with time, while here the start has been made for distinguishing between acts of communication.<br /><br />The Cat that Walks by Himselfnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-55827715713516432442016-09-08T20:30:31.228+01:002016-09-08T20:30:31.228+01:00Yes, I think Mirko is correct about that.Yes, I think Mirko is correct about that.Pauline McBridenoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22106182348024713222016-09-08T17:50:22.947+01:002016-09-08T17:50:22.947+01:00I am tempted to agree with Mirko's comment abo...I am tempted to agree with Mirko's comment above; or at least there certainly seems to be something odd about the Court's "rebuttable presumption", because according to the rest of its argument surely it is enough for the hyperlinks to be created for profit, with liability following whether or not they actually knew that the content was unauthorised? So what difference does it make if a profit-making linker is able to rebut the presumption and show that it didn't know the content was unauthorised?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-6814283265149388502016-09-08T15:41:25.991+01:002016-09-08T15:41:25.991+01:00I disagree that the two criteria "profit-maki...I disagree that the two criteria "profit-making nature" and "knowledge of infringement" require cumulative consideration.<br /><br />In para 49, the CJEU says:<br /><br />"In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet (...), the provision of that link constitutes a ‘communication to the public’" <br /><br />I don't see any "posting of hyperlinks carried out for profit" in this scenario. Therefore the only remaining criterion is "knew or ought to have known". When the link is posted "for profit", such knowledge is assumed.Mirko Brüßhttp://www.raschlegal.denoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-91328980846235660512016-09-08T15:01:14.464+01:002016-09-08T15:01:14.464+01:00From the first read, it's a very reasonable ju...From the first read, it's a very reasonable judgement. The CJEU had to screen out unwillful infringers. <br />'Financial gain + knowledge of illegality' is a good first approximation to that purpose.<br /><br />The judgment is quite expected given that in Reha Training, C-117/15 para [70], [71] the CJEU has already approached<br />implicitly 'Financial gain + knowledge of illegality' criteria with respect to the 'communication to the public'.The Cat That Walks by Himselfnoreply@blogger.com