Link Away - CJEU Decides Hyperlinking to Images is Not Communication to the Public

After the Advocate General's opinion on the GS Media (discussed here) case some 5 months ago, many people in the IP sphere have awaited the ultimate decision of the CJEU with baited breath. While the Advocate General's opinion reflected a pragmatic, very liberal interpretation of the legislation, some seemed skeptical on whether the CJEU would follow his thoughts. After, what felt like a small eternity to this writer, the CJEU has released its judgment on the case yesterday.

The case of GS Media BV v Sanoma Media Netherlands BV dealt with pictures of Britt Dekker (a famous Dutch TV personality), commissioned by Sanoma Media for publication in Playboy magazine. Prior to their publication, the images were somehow acquired and posted by a user on the file-sharing service Filefactory; a link to which was subsequently sent to the website GeenStijl, which is operated by GS Media. GeenStijl shared a part of one of the images of their website, with an additional hyperlink to Filefactory where users could download the images onto their computers. Although vehemently demanded by Sanoma Media, GS Media refused to remove the link from the website, although the content itself was removed from Filefactory. Sanoma Media then took GS Media to court for copyright infringement, which ultimately ended in the CJEU.

The Court had to determine "...whether, and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29".

The context is important here too, as the images in question had not been published prior to their leaking to the website and then to GS Media, and their hyperlink makes the finding of the files a lot easier and they had, or ought to have had, the knowledge that the works' publication on that particular website was not authorized.

Following the judgment in Svensson (discussed more here), the concept of a 'communication to the public' under the Directive consists of two criteria, specifically  an 'act of communication' that was communicated to a 'public'. While the Court followed its earlier decisions on the nuances of what amounts to a communication to the public, the meat of the matter lie in the application of this in the current scenario.

As was decided in Svensson, posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’ (followed in the BestWater case). The Court did distinguish that, in both of the aforementioned cases, the content linked to was authorized by the copyright holder, i.e. the content was legally on the website that the hyperlink lead to (meaning there was no new public for the content) As further clarified by the Court: "...as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public". This clearly distinguishes this case from both Svensson and BestWater, as the content was not authorized and therefore, arguably, the communication happened to a 'new public'.

The Court refused to infer the above, and stated that, to protect the freedom of expression and the Internet as we know it, one cannot simply categorize all linking to unauthorized content as a communication to the public. They further saw that, in assessing whether a communication to the public in such a scenario, one has to consider "...when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder". What remains interesting is the potential liability of an unknowing sharer, who still makes a profit by doing so. Ultimately, this seems to just raise the bar for negligence (or a willful blind eye), but is a curious consideration made by the Court.

Hyperlink profiteers enjoying their unlawful gains for one last time

The judgment did not, however, give everyone a free pass: "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, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1)". This makes sense, and would offer a safe harbor for those who were notified of any infringing content, especially if it had been placed there without the express authorization of the rightsholding party. The Court also put the onus on checking the content on those who gained a profit from sharing hyperlinks to other websites: "...it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1)". Knowledge, or presumed knowledge, is key here, and clearly the Court wants to curtail profiteers who would use this 'loophole' for their own benefit by sharing links to infringing, unauthorized content.

The Court then finally summarized their findings to the questions posed: "...the answer to the questions raised is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed".

The decision is a very interesting one, and this writer had been waiting for it for some time. What seems surprising is the emphasis of financial gain, but it makes sense, as often those who do not pursue pure monetary gains will be more honestly ignorant to the content  they have shared than those who aim to profit from it (often knowing full well what they are sharing, as it is the source of their users).

Bowled Away - 8-Second Cricket Clips Infringe Copyright

As a major consumer of North American sports, this writer is very reliant on the provision of highlights for this favorite sports, enabling him to keep on track with the latest developments and just to indulge in great sporting feats. Even highlights, however, are big business, being an important draw for new (and old) viewers to subscribe to TV or on-demand services providing full games in many sports, or just servicing as a vehicle to sell more merchandise through official channels. The emergence of social media has changed this dynamic, allowing for the provision of live highlights or video clips, showcasing sports events as they happen, with or without the blessing of the sporting organizations. With this in mind, would short clips of sports activities constitute copyright infringement or would app creators be allowed to let their users share these moments as they please?

The case of England And Wales Cricket Board Ltd v Tixdaq Ltd dealt with an app called Fanatix, which, among providing sports news, allowed for its users to record clips (up to 8 seconds long) using their smartphones or tablets, and sharing them with like-minded sports fans who might not be able to follow the action live (encapsulating mostly the 'highlights' of an event). The clips could be viewed through the app or on Fanatix's social media pages. The England and Wales Cricket Board own the rights to broadcast all video on cricket matches played in England and Wales, and upon noticing clips of cricket games broadcast via the Fanatix app, took its owner Tixdaq to court for copyright infringement.

Tixdaq argued that their use of the works was within the remit of fair dealing, specifically for the purposes of reporting current events under section 30 of the Copyright, Designs and Patents Act 1988. As such, the substantiality of the copying needed to be assessed, including for the purposes of infringement. Justice Arnold considered both parties' submissions, and saw that substantiality is to be assessed considering "...elements which reflect the rationale for protecting broadcasts and first fixations, that is to say, the investment made by the broadcaster or producer". One should not confuse this with the requirement of originality in relation to other types of works (as the case concerned broadcasts, not e.g. literary works). He summarized the correct test as the consideration of "...the degree of reproduction both quantitatively and qualitatively, having regard to the extent to which the reproduction exploits the investment made by the broadcaster or producer".

In his early consideration of fair dealing, Justice Arnold noted that any use made for the purposes of reporting current events would have to take into account "...whether the extent of the use is justified by the informatory purpose".

Citizen journalism: the backbone of an informed society

Justice Arnold then moved onto the interpretation of the phrase 'for the purpose of reporting current events'. In his judgment, the phrase should be interpreted objectively, yet liberally, so as to allow for the effective facilitation of free speech. The use, even in the remit of free speech and fair dealing, would still have to be assessed to the extent the material is used is justified by the informatory purpose.

In determining whether the 8-second clips were a substantial amount, Justice Arnold saw that they indeed were, as every clip contained highlights and points of interest, and therefore value. Because of this value the copying would be substantial, even though in a quantitative sense it would not necessarily be.

Finally, Justice Arnold addressed whether the use would fall under fair dealing. He briefly accepted that contemporaneous sporting events could be classed as current events for the purposes of section 30(2), however excluding any possible footage of interviews and punditry (within limits). This can also include 'citizen journalism', under which the use within the app does somewhat fall. Justice Arnold deemed that the use of the material was not reporting of current events under the section, as the video clips posted "...were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value". The objective of the app was also purely commercial, and designed to utilize the clips to their fullest in the collection of revenues, rather than as a medium for sincere journalism. The copying of the works therefore infringed the copyright owned by ECB.

The case is very interesting, especially in the context of new age media and 'citizen journalism'. Even though the app's use of the works was clearly nothing but an attempt to benefit from the blatant sharing of clips of cricket games, subsequent changes to the app forced users to 'report' more on the action, clearly being driven towards the use under fair dealing. One can think of other social media outlets, such as Twitter or Vine, where extensive commentary might not be possible, as potential candidates that might fall foul of section 30(2) if taken to court. Nevertheless, the case was a curious one, and a lesson for all aspiring app makers to heed copyright when making their apps.

Source: Technollama

Copyright and Social Media - Viacom takes on YouTube

As people use various social media outlets more and more, their relation to copyright and possible issues they present become ever more prevalent. Could social media websites such as YouTube and Facebook be infringing copyright through their users' submitted content? With YouTube receiving over 100 hours of video every minute, some of which clearly being copyrighted material, it was only a matter of time before the courts had to address this issue. Media giant Viacom took it upon themselves to bring this matter forth, suing the video hosting service for copyright infringement.

The lengthy legal battle began back in 2010, when the matter was taken to the New York District Court in the case of Viacom v YouTube. The defendant argued, in their application for summary judgment, that they were protected from being held liable under the safe harbor provisions in the Digital Millennium Copyright Act. Should YouTube have lacked actual knowledge of any infringing material or acts being conducted in their service; would not be aware of any facts or circumstances making such activity apparent; and have acted promptly on any knowledge of such acts or materials being published by removing them, they would be exempt from liability. In Viacom's argument, for partial summary judgment, YouTube had actual knowledge and were aware of facts and circumstances which made such acts apparent, but did not act upon that knowledge to stop it; they received financial benefit from this infringing activity and could control it; and did not result solely from providing storage and direction of a user in their facilitation of that content as specified in the section. In the court's conclusion YouTube did not infringe copyright and were safe under the provisions as a service provider. Even though the site did contain infringing material, YouTube's prompt removal of that content when notified of it prevented it from being liable. Should they have not acted upon the knowledge of the material, they could have been liable.

In taking things further, Viacom appealed, and their case was heard in late 2012 in the New York Court of Appeals. In the decision the court saw that the judge at first instance had not considered the issues of YouTube's awareness of the material or had actual knowledge of any specific infringements; whether they had 'willfully blinded' themselves, in other words ignored, the infringements; whether they had the right and ability to control that activity; and whether the content was syndicated, in other words controlled, by a third party (the user), only using the service as a means of storage and direction. In that light the case was sent back to the District Court for final summary judgment.

A plethora of possibilities

In its final decision the District Court saw that YouTube was indeed safe under the DMCA safe harbor provisions. The service had not willfully blinded itself to the infringing content, which was found through evidence in the form of internal emails between executives. Even though the exchanges did identify specific content that was infringing and discussed their removal, in themselves they were not enough to showcase any level of ignorance through choice. The site also did not have the right and ability to control users activities, as this would have meant an ability to do something beyond the mere typical control of a website. Finally their potential financial gain was not seen as an issue, as they did not encourage the uploading of infringing material, nor did they have active control over the content which was uploaded (pre-screening the videos etc.) In its judgment the court threw out Viacom's case and found in favor of the defendant.

So after years of litigation, what can we say about the relationship between copyright and social media? The relationship does still remain a complex one, and the nuances of each service provide different aspects that need to be assessed. What can be taken away from the Viacom litigation is the potential issue of "willful blindness", as websites cannot simply abuse the DMCA provision in the guise of not knowing that infringing acts are occurring. In short, ignorance is no defense if it's through choice. Websites don't have to take an active role necessarily in screening everything that is posted, but do have to act once informed of any misuses. As social media grows and evolves, it will provide newer challenges and potential issues going forward, but as it stands, the Viacom case gives us a great illustration of how social media and copyright interact.

Safe Harbors and 70s Music

Online services in the United States, such as websites where content is shared, have relied heavily on the protection of the Safe Harbor provisions in the Digital Millennium Act to protect themselves from infringement through their services. The provision itself excludes online service providers from liability should the users of their services do so, on the condition that they are unaware of this activity and should they be notified of any infringements, take immediate action to stop the infringements or remove any infringing material. As one can see, the legislation encourages service providers to take a proactive stance, and limits their liability should their services be misused in a way which they're unaware of. From a provider's stand-point not only does this allow for start-ups to engage in their respective service provision, but it also prevents them from being immediately swamped by law suits and therefore never getting off the starting line. The matter of whether service providers, specifically music streaming services, would be protected from liability for sound recordings made before protection was awarded to them through Statute in 1972 (albeit still existed through common law) was deliberated by the New York State Appeals Court a mere few days ago in the case of UMG Records Inc v Escape Media Group Inc.

The grooviest of all sharks

The case concerned the website Grooveshark, where users could stream content that uploaded by other users,creating playlists or listening to selected artists, with revenue coming through user subscriptions or advertisements during streaming. The claimant, UMG Records argued that the Safe Harbor provisions did not offer escape from liability for service providers, due to the DMCA amending the prior Copyright Act which expressly set out that any sound recordings made before 1972 would not be covered under the Federal legislation. This would in turn mean that the amendments made in the DMCA would not apply to those songs, rendering the Safe Harbor provisions unusable to protect service providers, as liability would still exist through the common law.

In their decision the court stated that the provisions would not apply to songs made before 1972, causing the service provider to potentially be liable under common law. The decision went against a District Court decision a few years before, Capitol Records v MP3tunes, where Judge Pauley saw that there was no indication that the legislation would exclude sound recordings made prior to 1972. The decision in the NY Court is one of strict interpretation, and in this writer's honest opinion, lacks the common knowledge and application to today's needs for service providers. The legislation does not expressly limit its scope, and applying pre-Internet legislation in its interpretation would undermine what the Safe Harbor provisions set out to achieve; to offer protection for service providers in an age where millions have access to services, making their full control and prevention of infringement an arduous and difficult undertaking. The case will be appealed and hopefully rectified in higher courts.

The case itself shows yet again, as has been discussed in this blog several times, the datedness of copyright legislation in the US. Without express and clear provisions dealing with subject matters such as this, bringing copyright legislation to the 21st century, both users and service providers will end up fighting an uphill battle trying to protect their rights and ability to utilize the Internet to its fullest. Whether action will be taken will remain to be seen, but there clearly is a need for reform.

Source: Thomson Reuters