By Sarah Griffis

On Wednesday, the Dutch  Civil Court in Amsterdam declared copyright Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)infringement may attach to an individual or organisation that links to infringing content. This is a new tendril of law that seeks to delineate the contours of infringing via hyperlinking. Some worry that this law poses a threat to nearly all webpages, and misses the legal mark when determining liability.

The case stems from links in an article GeenStijl.nl, a local (raunchy humor) news website, posted about a recent Playboy photoshoot featuring popular Dutch TV personality Britt Dekkers. The article in question focuses mainly on the leaked nature of the content, and invites the reader to click a link to the file of photos hosted on FileFactory.com. The events unfolded as Playboy issued a letter to FileFactory.com and asked them to remove the material, which they did. In response to the link going dead, GeenStijl.nl found a new source of the photos, and this  slapstick entertainment repeated itself a few more times through various outlets of the photos before Playboy and it’s Dutch publisher, Sanoma Media Netherlands, finally sued GeenStijl.nl itself for infringement.

In court, the judges introduced and discussed a three-prong test for determining whether linking would be considered infringing behavior. The court considered “intervention” “new audience” and “profit” as the factors to be analyzed in  the fact pattern. Loek Essers at PC Advisor writes that the three prong theory in this case was inspired by a recent EU Court of Justice, which ruled that “hyperlinks can infringe on copyrights if their publisher intervened, reached a new public and wanted to profit from their publication.” According to Marjolein van der Heide at Future of Copyright, in GeenStijl.nl’s case, the court applied the test to the facts and determined that the news-page had intervened by facilitating the publicity of the file by providing a direct link, had gained a new audience for the file which did not previously exist, and intended to and did profit from the increased web traffic generated by the article linking to infringing material.

While some groups are celebrating the ruling, Mike Masnick at Techdirt worries that the law has mistakenly put liability on a non-infringing party. GeenStijl.nl rages after its negative verdict that the judges have in fact banned Google with their new rule. However, Dutch law professor Dirk Visser dismisses this as a complete exaggeration of this narrow rule.

Given that here in the US embedding video is not considered infringement– even when the content does infringe, this strikes as a controversial decision. Does the Dutch ruling draw ascertainable lines to prevent abuse of the internet via this precedent?

Image used courtesy of  Flickr user dullhunk without permission via CC BY-NC-SA 2.0 license.

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