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a. Hyperlinking is not copyright infringement, EU court rules
Does publishing a hyperlink to freely available content amount to an illegal
communication to the
public and therefore a breach of creator's copyrights under European law? After
examining a case
referred to it by Sweden's Court of Appeal, the Court of Justice of the European
Union has ruled
today that no, it does not.
The European Union has been expanding since its creation in the 1950s and is now
comprised of 28
member states, each committed to EU law.
One of the key roles of the EU's Court of Justice is to examine and interpret EU
ensure its uniform application across all of those member states. The Court is
also called upon
by national courts to clarify finer points of EU law to progress local cases
One such case, referred to the CJEU by Sweden's Court of Appeal, is of
particular interest to
Internet users as it concerns the very mechanism that holds the web together.
The dispute centers on a company called Retriever Sverige AB, an Internet-based
service that indexes links to articles that can be found elsewhere online for
The problem came when Retriever published links to articles published on a
that were written by Swedish journalists. The company felt that it did not have
the journalists for simply linking to their articles, nor did it believe that
within its site amounted to copyright infringement.
The journalists, on the other hand, felt that by linking to their articles
had "communicated" their works to the public without permission. In the belief
they should be
paid, the journalists took their case to the Stockholm District Court. They lost
their case in
2010 and decided to take the case to appeal. From there the Svea Court of Appeal
from the EU Court.
Today the Court of Justice published its lengthy decision and it's largely good
for the Internet.
"In the circumstances of this case, it must be observed that making available
concerned by means of a clickable link, such as that in the main proceedings,
does not lead to
the works in question being communicated to a new public," the Court writes.
"The public targeted by the initial communication consisted of all potential
visitors to the
site concerned, since, given that access to the works on that site was not
subject to any
restrictive measures, all Internet users could therefore have free access to
them," it adds.
"Therefore, since there is no new public, the authorization of the copyright
holders is not
required for a communication to the public such as that in the main proceedings."
However, the ruling also makes it clear that while publishing a link to freely
content does not amount to infringement, there are circumstances where
that would not be the case.
"Where a clickable link makes it possible for users of the site on which that
link appears to
circumvent restrictions put in place by the site on which the protected work
appears in order
to restrict public access to that work to the latter site's subscribers only,
and the link
accordingly constitutes an intervention without which those users would not be
able to access
the works transmitted, all those users must be deemed to be a new public," the
So, in basic layman's terms, if content is already freely available after being
and isn't already subject to restrictions such as a subscription or pay wall,
linking to or
embedding that content does not communicate it to a new audience and
is therefore not a breach of EU law.
The decision, which concurs with the opinions of a panel of scholars, appears to
be good news
for anyone who wants to embed a YouTube video in their blog or Facebook page,
but bad news
for certain collecting societies who feel that embedding should result
in the payment of a licensing fee.
b. Hyperlinking Isn't Illegal: The Bulk of Barrett Brown's Charges Were Dropped
Today federal prosecutors requested that the main charge in Barrett Brown's case-which
from the pasting of a hyperlink containing leaked credit card data from the
dismissed, along with 10 other charges. The motion to dismiss filed by
prosecutors is a big
victory for Brown, who was facing more than a century in prison, as well as
information freedom and journalists.
The biggest concern all along has been that if Brown were convicted of sharing a
it might well dissuade journalists and bloggers (or anyone else, really) from
similar actions in their work. With that now derailed, the case now stands as
that sharing a link to freely available information as part of a journalistic
is not an illegal act.
To briefly recap the case, Brown originally copied and pasted the Stratfor
#AnonOps IRC (Internet Relay Chat) to #ProjectPM IRC (a relay under Brown's
control) as part
of ProjectPM, the imprisoned journalist's effort to unmask the
The leaked data included the email addresses of 860,000 Stratfor subscribers,
but also 60,000
credit card details. This data was already available to the public when Brown
pasted it to his
IRC, though that didn't stop the Department of Justice, from claiming Brown's
illegal because of they made the information more public.
The wisdom of pasting a hyperlink of stolen credit card information into an IRC
is worth a
debate, but there is no indication that Brown carried it out with any intent to
holders. Instead, Brown's ProjectPM team routinely scoured troves
of both leaked and public
documents to illuminate the threads connecting US spy
bureaus, private intelligence firms
(like Stratfor), programs like TrapWire,
Silicon Valley data analytics firms like Palantir,
as well as banks, venture
capitalists and angel investors like Peter Thiel,
and other intelligence
In short, Brown occupied himself with some of the same work that Edward Snowden
pursue with his massive NSA leaks.
While prosecutors did not lay out their rationale in their motion to dismiss 11
of 12 charges
facing Brown, Brown's legal team emphasized these ProjectPM objectives in its
own 43-page motion.
In it, Brown's lawyers argued that the government had failed to allege an
offense (based on legal
definitions of "authentication feature" and "transfer"); penalized Brown for
under the First Amendment (pasting the hyperlink); and prosecuted him under
Section 1028 and
1028A of US code of law, which is "constitutionally vague and overbroad"
relative to Brown's
The last point is critical. As Brown's attorneys wrote in the motion, "A person
intelligence would have no meaningful notice as to whether it was a crime to
knowingly possess or
transfer an item that satisfies all the requirements of an authentication
feature but is not
issued by a government entity." (An authentication feature is
a hologram, symbol, code, etc.,
issued by a government entity.) The credit cards
at issue in the hyperlink were issued by
private entities, not a government,
making it unlikely that the transfer of authentication
features charge would
have held up in court.
Now that the hyperlink charge has been dismissed, journalists can rest easier
cutting and pasting leaked documents won't land them a lengthy
prison term, and the case lends
weight to the argument that hyperlinking is an
act of free speech. Another point worth
highlighting in Brown's motion to
dismiss is that even if the law were precise in its fair
warning language (as to
the transfer of authentication features),
to prosecute on this basis would still suppress protected speech.
The decision to drop the case also appears to settle (for now) the question of
whether or not
journalists like Brown-as noted in the motion to dismiss-run afoul of the law in
press activities such as "newsgathering and research
(e.g. by downloading content from a public website),
or verification of sources (e.g. by reading that content)." If this were
then journalists might not be able to verify sources and determine fact from
an integral part of the job.
It's also worth noting a section in Brown's motion to dismiss that deals with
the chilling effect
that the hyperlink charges might have had on cybersecurity research,
which also requires dealing with hacked data:
Private security researchers are often depended on by companies like Stratfor to
unsolicited forensic analysis of data dumps in order to find out who
conducted the hacks
and how future attacks can be avoided. [See Nicole Perlroth,
reporting from the Web's
Underbelly, NY TIMES, Feb 16, 2014.] In doing so, these
(many of whom analyzed the Stratfor hack) knowingly
transfer hacked data onto their systems.
Still, the ruling doesn't negate the enormous legal ordeal Brown has faced-he
than a year in jail, not to mention legal fees and a government gag
order-which is a
chilling effect of its own.
The government's case leaned heavily on charges relating to the credit card data,
and if there is
a larger lesson to be learned here, it might be that individuals probably
hyperlinks containing credit card information. Yet while credit card information is pretty
universally understood to be sensitive information, such a distinction
isn't always so clear.