Leaked Playboy pictures linked to by the Dutch blog GeenStijl infringed on Playboy's copyrights, the Court of Amsterdam ruled last week. It is the first time a Dutch court has deemed a hyperlink not only illegal but also copyright infringing.
GeenStijl must remove all links to a leaked Playboy photo shoot of Dutch reality TV personality Britt Dekker, the court ruled. GeenStijl infringed on the copyright of local Playboy publisher Sanoma by linking to the photo shoot, which was posted on filesharing site FileFactory.com and later on ImageShack.
While linking to content in itself does not infringe on copyrights per se, the court said that a combination of factors was crucial in this case. The broader public was not aware of the existence of the leaked photos before GeenStijl published the link, the court said. The public wouldn't have had access to the photos without GeenStijl's intervention, according to the verdict.
And because GeenStijl is an ad-supported website, it wanted to profit from the publication of the photo shoot by attracting more visitors, the court said. This combination of factors makes the link infringing, it said.
GeenStijl was ordered to remove the links to the photos, and if it fails to do so, it will be penalised €50,000 (£40,5000) a day with a maximum of €1 million, the court ruled. The blog was also ordered to pay Sanoma's court costs of approximately €28,000, as well as damages, which have not yet been determined.
"This decision is terrifying for every journalist and everyone who runs a website," commented GeenStijl on its website. Publishing a link to a photo is different from publishing a photo, even if that makes the photo easier to find, it added. GeenStijl said it will appeal the decision.
"We are not happy with this verdict," said Janneke Slöetjes of Dutch digital rights organisation Bits of Freedom (BoF). While BoF understands the court's reasoning in this particular verdict, it is worried about possible consequences for future lawsuits. "What will be the boundaries?" Slöetjes said. "This could be very bad news for search engines for instance," she said, adding that it is uncertain how the profit and intervention criteria will apply for a website as Google.
One organisation that is pleased with the court's ruling is Brein, the Dutch anti-piracy foundation."This verdict offers many opportunities against sites that are consciously offering access to unauthorised content," said Tim Kuik, Brein's director. His group won a block of the Pirate Bay at the ISP level in a court in The Hague earlier this year.
If a court can decide that a link infringes on copyright, it will be easier to make a case, he said. Before, Brein had to prove that a link was illegal, and last week's verdict could help shorten that process, he said. And when a court rules that someone infringes on copyrights, the defendant always has to pay for the plaintiff's court proceedings, which is not the case when a link is declared illegal, he added.
"We are going to see how we can use this verdict in future lawsuits," Kuik said.
"It is an exaggeration to say that this judgment has far-reaching consequences," commented Dirk Visser, professor of intellectual property law at Leiden University. "This verdict was absolutely motivated by the severity of the infringement," he said. Everyone senses that linking to illegal material cannot be right, he said.
Besides being a professor Visser is also a lawyer who in the past has litigated on behalf of Brein.
In some cases, as in the case of WikiLeaks for instance, freedom of speech can prevail over copyright, Visser said. But because this case was about nude pictures there was a "clear commercial interest," he said, adding that Playboy's business model is based on publishing the pictures first. If this is not illegal, everyone could publish something anonymously online and then link to the content, he said. "Everyone feels that is not right."
The Dutch ruling was made possible by a recent ruling in which the Court of Justice of the European Union found that hyperlinks can infringe on copyrights if their publisher intervened, reached a new public and wanted to profit from their publication, said Visser.
Visser could not predict if other European judges are going to follow the Dutch interpretations of this verdict. "That remains to be seen," he said.