I agree, this is bad for the internet. However, some context is missing:
The case was in the Netherlands, regarding the website GeenStijl linking to leaked playboy pictures.
The court said that 1) GeenStijl made money from it 2) they should and could have know, and most probably knew, that this content was illegal (because they posted it as 'leaked nudes!!').
The combination of these (earning money from content that is known to be illegal) was what made the decision.
The court also said that these are requirements in the future.
So, if I link to a page on a forum of my blog that becomes illegal alter, neither of the requirements are fulfilled. No problem.
Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling.
What if the link had consisted of a prominent section "How to find it" consisting of the words (I'm making this up) "Search Google for leaked playboy pictures from 2011, and click on the first link, which should be a site named after a fish."
Now it is a passing reference to how to find it -- but your criteria that 1) they made money from it, and 2) they could know and should know that this content is illegal.
Well, all right. So let's say that is contributing to copyright infringement. Let's make it illegal.
Now what if we change the passing reference to be "the pictures are pretty easy to find via Google." What if we imagine that this is how the reference now reads.
What now? What if it's illegal and what if the site makes money off of it?
How about Hacker News. It is a statistical certainty that at least one reader decided to find the pictures based on our report here. It's certain. With absolute certainty you can say that someone searched and found the pictures.
Does YCombinator get value from the fact that this report contributes to interesting information being available here? Absolutely.
So, should Hacker News be allowed to report on this court case as explicitly as it has done?
Remember: it is absolutely certain that some people have found the pictures as a result, and it is also absolutely certain that they would know this would happen. They directly benefit from it.
So where does it end?
A good place to draw the line might be: reproducing content. Since, you know, that's what copyright ... wait for it ... actually limits...
I don't think reproduction is a good line at all; HN could still be guilty if someone posted an unlicensed copyrighted work (say, a news article).
Intention and knowledge is the best dividing line, in my opinion, and courts certainly take it into account. HN blindly reproduces what people post, whereas the link in question was posted by the site editors themselves - that's a clear distinction, and in fact many lawsuits (in the US) were based on it.
I do disagree with the court's decision to presume that any publication for financial gain is done with knowledge of the copyright status, though.
When they said copying was what should be seen as the line I assumed that was within the framework of current Western laws, so things like intent (mens rea) are a given.
are you and your parent referring to me by "they" (as a gender-neutral term)?
What I meant with my comment is that a pretty clear example of copyright would be, for example, hosting and including the copyrighted content. (If the content is literally on the hosting server - posting full text is obviously an example of this. Hosting full images is another example.)
A less clear example would be hotlinking. (So that the pictures are loaded and shown by the browser, and it appears to be part of the article, but is in fact an offsite image anchor.)
An even less clear example would be a URL link. That is what we're reading about. But What if it's not clickable? (hxxp:// whatever(dot) whatever - replace hxxp with http and (dot) with . -- what then?)
An even less clear example is telling you explicitly what Google search to search for, and how you can know that you've found it. (e.g. words like "Search Google for leaked playboy pictures from 2011, and click on the first link, which should be a site named after a fish." - I'm making this up.)
But a less clear example still would be "It's easy to find. Just search for [vague reference but one that is clear enough]"
So you want to use the standard of "mens rea."
How can we REALLY judge what someone's reason might be?
For example, it could be that the real reason to report on something is so that interested readers might find it.
Example: "The Pirate Bay is now hosting the entire (name something)". It could be that the primary reason to say that is that it provides people information that they can immediately use to start infringing the copyright of (something).
But what if it's couched in any other report?
"What the fact that the pirate bay is hosting (something) says about democracy and our copyright laws"? Should that be an illegal post to make?
You understand what I'm saying. It's an extremely slippery slope.
But one very, very clear line is: "are you ACTUALLY yourself hosting the content"? Because if not, then there's an actual target to shut down.
I guess it's like the difference between selling drugs, and saying "you know you can just ask the kids hanging out on the corner of 6th and 8th streets, they'll hook you up." Whether that latter shows criminal conspiracy or whatever, it doesn't really matter - you can actually just shut down the kids, you don't have to shut down the free speech around it or judge mens rea.. . .
Personally, I think not having mens rea as a standard is killing any possibility of user-generated content, since any such site could be convicted if any of its users posted an infringing work. The Safe Harbour provision is one of the few good parts of the DMCA, but it requires judging mens rea, and once you have to judge that, adding linking doesn't have bring any further issues.
In Brilliant v. W.B. Productions Inc., the court ruled that the phrase "I may not be totally perfect, but parts of me are excellent" was copyrighted. Under your black-and-white standard, without judging intention, HN would now be guilty of infringement. How could it continue to exist with this threat?
Mens rea might be hard to prove (and presumption of innocence should be applied), but strict liability becomes absurd.
I'm outside of my league with this mens rea discussion (didn't look into the details) but obviously the fact that you've performed what amounts to copyright infringement through quoting the phrase you discussed, is quite a different problem from this infringement link.
Let's make it explicit. The Pirate Bay is a common site for piracy, so I went there to get you this link:
What I did was go to the site, then I clicked "top 100" in the header, then I clicked "video | movies" and it was the second link, called "Captain America: Civil War (2016) English BrRip 1080p x264".
Actually you can also find it by googling "Captain America: Civil War (2016) English BrRip 1080p x264" and adding "site:thepiratebay.org" to your query.
Okay, now let's dissect what just happened.
Level1: Firstly, under traditional interpretations of copyright law, the entirety of the present comment (the whole of this comment you're reading) is not infringing on any kind of copyright. I didn't even quote your purposefully short problematic phrase, which you chose because it has been found to be worthy of copyright protection despite its brevity (i.e. similarly protected as a longer work, such as a novel or article). There's nothing copyrighted in this comment, I just authored it out of thin air. I didn't reproduce anything, or include the phrase you held to be protected. I typed it all as a new work.
Level2: Next: I've actually included a link to infringing materials, though. Now am I guilty of some kind of accessory to copyright infringement? My link is actually similar to the article we're discussing. This "level 2" infringement is occurring in the present comment, but if I were to remove the line that starts with an asterisk it would no longer be level 2 infringement. There would no longer be any URL in this comment.
Level3: But, thirdly: what if you remove my link? I've still given you enough information to get to it exactly. The line immediately after the asterisked line tells you exactly how to get there. It just adds 15-45 seconds of inconvenience versus a simple click, and maybe a 20-50% chance that you fail to follow my instructions if you choose to try to do so.
In fact, other than the level-1 line in the sand (which this comment doesn't cross, since I'm not reproducing anything including the short problematic protected phrase you quoted) the rest of the lines in this comment are completely and utterly murky.
Okay, so you've given a tangential example where your comment actually crosses the level-1 line, due to reproducing the phrase "I may ...excellent". Obviously that is an extreme example, but we don't really need to discuss it. Because this present comment (that I'm writing) does not cross that standard. It does, however, cross the level 2 and level 3 standard.
And those lines are murky as hell. There is just nothing there to draw the line at: "THIS is what you're allowed to write; THIS is what you're not."
It has nothing to do with reproducing content - it's about reference to where copyrighted works are available.
I welcome your thoughts as you do know more about this than I do however.
>I don't think it's murky - according to the court, all of those levels would be infringing.
You're saying that if I were to say "it's easy to find a blue ray rip of Captain America" (this is the whole of my reference, exactly in these words) then I would be guilty of copyright infringement? Because that is one of the lines in the sand. I don't see it. But telling you what to Google is nearly that.
I hope that's the case, and I didn't read the legal text, but how would you protect yourself against that? Would we have to keep tamper-proof screenshots (or archive.is-like snapshots) for each external link posted?
Screenshots are terrible proof. They were however used in a Swedish piracy court case many years ago. That led to someone building the "proof machine"[1] which created screenshots of BitTorrent clients with any IP you entered. Try it:
Cryptographic, digital notaries. You could do screenshots and/or HTML pages. It's how I've always done it when I thought what's on a page would be significant and need proof later on.
EDIT: There's also newer ones that pull the site for you like a MITM to do what we're saying. Startups come and go, though, so I recommend scripted or manual scraping combined with long-running notary who will have evidence when trial happens. :)
While we could implement a system to have tamper proof verification of stuff that's been archived, how do you prove that the archive (snapshot) is what was actually at the target at creation time and hasn't been modified before archival?
I'm thinking in purely technical terms here, and that I can easily argue that such evidence is inadmissible, unless there's a certain number of independent, trusted snapshot services that would archive each link too, and allow one to compare the decrypted archive. To achieve that, one would probably want to use an indirection for linking so that such archives do not have to archive everything that exists, but just those that go through said indirection.
Then, the last question is how many independents you need to put trust in the verification, considering that motivated attackers could circumvent, say, the 3 most used archiving services. Or you could bind the archival of a link in a federated number snapshot services to a consensus algorithm. Then you'd ask yourself how many networks (which consist of multiple services) you'd trust.
> Each client receives different content (at some level).
Exactly, and now imagine how easy it is for someone motivated and with the right resources to meddle with that.
Similarly, it's hard to prove a machine was used by its user to consciously navigate to an illegal link. There's too much automatism on the web and on networked machines, plus if we consider link shorteners, there are too many explanations against that would not allow admitting evidence like machine-x-owned-by-mike-miller-accessed-mp3forfree-artist-album-2016.pdf.
It's the equivalent of me walking in a street where I didn't know drugs or weapons or humans were sold, and being arrested for just walking through there. In real life you have some clues where not to go, especially if you're from the town, but on the internet it's too easy to have your machine load a random illegal link or search alarming terms on Google without your consent.
You publish the hash chains with signature in places you can't retract. They use New York Times for instance. Far as their sigs, they can use one or more HSM's. One or more atomic clocks plus high-quality NTP for timing. Open-source client checks all of it right after it happens, maybe keeping local copy. Every other aspect is just standard INFOSEC.
I dont have time to answer the last question right now. Off to work. :(
But the last one is the most interesting to finally be able to trust the results. It's the same problem as faced in distributed systems, but in, say, NoSQL databases I haven't heard anyone consider the possibility of 4 of 6 members of a quorum to be undermined, and how to detect that.
Yes, but how do you conclude without a doubt that what was hashed hasn't been tampered, leading a site to believe it's legal or malware-free content, while it actually isn't, and you've just been fed a shadow version of the real thing. We can reach for consensus algorithms, but ultimately without something like Van Jacobson's Content Centric Networking, it will be very hard to prove with enough confidence for a judge to make a ruling.
Sure, and if the quorum consists of 6 members, and you managed to undermind 3 of them by making sure they're fed the same custom shadow content, you'll have a split.
Read now. The ruling acknowledges the target is mutable, but it also says that the poster of a link on a page that's for-profit must check the target content. However, I cannot find anything how one should prove it was legal at time of linking. The only sensible thing I can find is that once notified a link has to be taken down. Did I miss something?
Perhaps it would work the other way around? The prosecutor has to positively prove that when you established that link, it was pointing directly at illegal content (and based on the context of your linking, that you knew it was illegal).
Making money is the point here. It's not illegal for me to point at a guy selling bootleg DVDs on the streets of NY. But if you pay me to show you where you can buy bootleg DVDs in NY, I'm pretty sure I'd be found to be at least an accessory.
It may be bad for the internet, but it seems fair and also consistent with earlier EU rules, such as the "right to be forgotten". It places an extra burden on the big, commercial sites to remove links (or stop linking on the first place) to content that is considered illegal in the EU.
Of course, that may be considered bad for the internet, because most people, as long as they are not the victim, like to see leaked nudes and download stuff for free, and the internet has grown in no small part because of this.
I think that now that the internet is mature as it is, some limits are necessary to keep things fair and protect people from the mob, and the internet will live on nonetheless.
Like the Norwegian piece the other day about the famous Vietnam war picture that Facebook considered nudity this is yet another signal that local law and culture needs more consideration by the big web publishers.
> I think that now that the internet is mature as it is, some limits are necessary to keep things fair and protect people from the mob, and the internet will live on nonetheless.
The problem is, if you have a different internet in the US than you do in Europe, China and Saudi Arabia then it isn't the internet anymore. There is no way to do that and still allow people in Europe to communicate with people in the US -- otherwise they could just forward each other the censored information (and set up automated systems to do the same).
The more you censor the more popular the countermeasures become until either everyone is using them and the censorship is completely ineffective, or we're all living in the sort of communist police state necessary to prevent that.
And there is no point in engaging in censorship that is completely ineffective, so what you're really proposing is the police state.
The "temporary" part seems to have disappeared, at least in the USA. Very, very little material enters the public domain every year. The rules about copyright (instant when fixed in tangible form, long lasting, can last for years after an author's death) make it almost impossible to tell based on the material itself, whether that material is copyright. I have to conclude that today's US copyright is an imposition by authorities, albeit a subtle one.
I, along with most commentators it seems, consider the shift to give rights to authors (over a private, closed, cabal of printers) in the Statute of Anne to be the shift to copyright of a form recognisable today.
The Licensing Act you refer to was a censorship law, not a copyright law; it IIRC doesn't protect authors rights nor give them primacy as the creators of [copyright] works.
But copyright is a social contract. It needs people to believe in it far more than it needs people to be forced to follow it at gunpoint.
Aggressive copyright enforcement is counterproductive because it trades a small increase in the cost of defecting for a large increase in public disrespect for the social contract which is what causes people to be willing to defect.
I'd rather the laws of a country which enshrines freedom of speech to a greater degree than any other be the set of rules governing the internet than the laws of a place where you can be fined for jokingly giving a Nazi salute.
>It places an extra burden on the big, commercial sites to remove links (or stop linking on the first place) to content that is considered illegal in the EU.
Why did you insert the word "big" in front of "commercial sites"? There is no such qualification in the court's ruling.
Every small blogger who makes a little money through ads now has an obligation to check whether or not the owner of every single linked page owns the copyrights to the content they publish (or will publish on that page in the future).
I have no idea how anyone could possibly perform these checks. Do you ask the linked site for proof? But if anyone is going to find a way through this legal nightmare it's going to be the very biggest players with big legal departments.
>Every small blogger who makes a little money through ads //
FWIW you don't usually, in copyright, have to make money for a site to be considered commercial. Depriving another entity of the ability to fully profit can be enough, or even advertising something you're not directly profiting from.
> now has an obligation to check whether or not the owner of every single linked page owns the copyrights
That isn't what the ruling says: you can still assume content is legal. Only when you know (or "should have known") it isn't do you need to unlink it.
In this case, geenstijl.nl (which is a professionally-run news site that likes to troll and stir up anything to get traffic) repeatedly linked to leaked playboy pictures uploaded somewhere on the internet. There was no way they could claim innocence. They expressly and repeatedly decided to link content they knew was illegal and would get them a ton of traffic.
>That isn't what the ruling says: you can still assume content is legal. Only when you know (or "should have known") it isn't do you need to unlink it.
That is simply incorrect. Here's what the ruling says:
When hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published.
"Carry out the checks necessary" means that you cannot simply "assume content is legal".
> Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling.//
Only because "Google" chooses not to. Execs in control of what Google links to know that it links to illegal/tortuous/immoral content -- leaked nude images, say -- they make money from advertising alongside those links and by inclusion of such links so they can provide a 'comprehensive' search.
Google will get a pass though, too big to prosecute. The result of that is there will always be a place to find such content.
It's inequitable -- and hence contrary to democracy and the rule of law -- to convict someone of providing a link without also convicting search engine execs whose SE provides the same link. It also makes the process futile.
I think you've misunderstood - Google, I am sure, is aware that it probably links to illegal content. But it has no way of knowing what is illegal or not - so it would not meet those conditions. It's a completely different situation to the case in question.
You don't think Google execs know for sure that Google links to copyright infringements. There's zero chance of that IMO. Criminal law only requires "beyond reasonably doubt", civil law (torts liked copyright infringement) only needs a "balance of probabilities".
Those people have the same way of knowing what's unlawful or illegal or tortuous as the rest of us; actually they're more likely to be able determine it IMO.
Google link to iTunes, iTunes provides a means (CD ripping, yes, for real) to circumvent UK copyright law ... go on tell me Google's lawyers don't know this essential basic of UK copyright nor that you can find iTunes (designed for copyright infringement!) on Google.co.uk.
It's not like any of this is being done to serve the public interest, it's solely focused on narrow commercial interests.
They can moderate sites before adding them to a search index. In newspapers usually there is an editor who checks articles before print, why not make google do the same? So there will be no illegal and immoral content and the users will feel safer. Google is very rich and therefore can afford moderation, they just don't want to respect european law.
The court also said that these are requirements in the future.
So, if I link to a page on a forum of my blog that becomes illegal alter, neither of the requirements are fulfilled. No problem. Also, Google does not know what is illegal and what is legal, so they can't be sued over this particular ruling.
That is how I have understood it