The decision said that a link to illegal content can be illegal in itself when 1. it's done for monetary purposes, and 2. when the person creating the link was aware of the illegal nature of the content being linked.
But who would have doubted about that? Did you really think you could create links to illegal content for money and get away with it?
On the other side, it clarifies the fact that a link to illegal content will not be illegal if it's done for free, or if it's done without knowing the illegal nature of the content being linked.
To quote the decision : "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."
> Did you really think you could create links to illegal content for money and get away with it?
Yes, and that's a horrible ruling. Almost everything can be construed as "for money". Are you a newspaper with paid subscribers? Everything you link is "for money". Do you have a Google ad on your hobby blog? Technically, you're getting paid for it. Someone will make the argument that you're driving traffic to your ad-sponsored blog by linking to infringing content, so obvious you're profiting from piracy.
It's also ludicrous to pretend that the linker is guilty of the crime. If I link to Silk Road and you go there to buy drugs, I am not involved in the transaction. I didn't buy drugs. I didn't sell drugs. I had nothing to do with you ordering drugs other than telling you where they were.
Google links to things that are illegal all over the place. Should they be guilty of linking to Muhammad cartoons because that's taboo in certain countries? Of course not, even if they get paid for it.
> Everything you link is "for money". Do you have a Google ad on your hobby blog? Technically, you're getting paid for it.
So why do people have Google ads on their hobby blogs? Could it be that it's actually for money, not just "for money"? If it's not for money, why even bother running ads? Sounds to me like a pretty good indicator of intention.
When you have ads on your hobby site, do you ever stop to think about how your content affects ad
traffic and revenue, or do you never ever think about the banners that you run? Genuinely curious.
It's irrelevant what you plan to spend the revenue on. My hobbies cost money as well, but I don't subsidize them with ads. I pay for them with my own money.
If you want to run a blog as a hobby, great. Spend your own money to buy hosting and be done with it. If you want to generate revenue off your hobby, that's fine as well, but know that it's not purely a "hobby" anymore. Even if the amounts are small or you're not profitable, it doesn't matter.
EDIT: Sibling comment may be more accurate. If you show non-profitness, (I'm speaking abstractly, not in relation to linked court decision), that would be enough to sever the link between the otherwise infringing links and your revenue.
This isn't a hypothetical abuse of the law. This actually happens. Sites are shut down for linking to things. Sites are considered 'commercially' violating copyright because they have a banner ad that gives then a thousandth of a penny. Look at the current incarnation of the pirate bay. It doesn't even link to infringing content. It just gives you the ID code of a file that helps you find infringing files. There's no tracker, there aren't even .torrent files. Now look at how many places it's banned.
> Look at the current incarnation of the pirate bay. It doesn't even link to infringing content. It just gives you the ID code of a file that helps you find infringing files. There's no tracker, there aren't even .torrent files. Now look at how many places it's banned.
Was this really the best example you could come up with? Because that's clearly the law working as intended.
Even if that's the intent, it's pretty hard to reconcile how copyright law acts nothing like anything else. If I make a website that describes the effects of various designer drugs in glowing terms, and the closest I get to helping you buy some is telling you the chemical ID, I'm very easily on the legal side of things.
> closest I get to helping you buy some is telling you the chemical ID
How are those things in any way comparable? Knowing the chemical formula of a drug doesn't get you any closer to possessing it, but knowing the ID of a torrent lets you immediately download it.
At the end of the day, would you want law to be based on technical trivia, which can rapidly change, or do you want it be based on the intent of the persons involved?
You can put the ID of a chemical into a black market search engine just as you can put the ID of a torrent into the DHT search mechanisms.
Both require that you know where to go, and use a third party search system to find the people that actually have the illegal material.
At the end of the day, I want the responsibility to be on the people actually performing illegal distribution. And when someone provides a listing of what is available illegally, without who or where to get it from, that should be legal.
In your opinion, if someone writes a highly-convincing page encouraging you to smoke opium, is that intent okay? Because to me that seems about equally far-removed from any drug crime as your typical torrent search engine is from infringement.
But the distribution of profit is completely different in those two cases, and that's legally relevant.
When you go on the dark web and buy something illegal, the money goes to the seller, whereas presumably nobody is directly profiting from the torrents.
Are you being serious here? How do you think courts deal with these issues every day?
Common sense. A pirate bay clone would still be knowingly and intentionally distributing links to infringing material, whether or not doing so without a financial incentive is illegal depends on the jurisdiction.
If only determining that something is infringing were that easy. Given that everything fixed in a tangible form is copyrighted, and then copyright lasts until after the author has died, I have to know who fixed the material, when, and if they're still alive. It's an impossible situation, and you're glossing over it like it's easy and automatic.
And what makes it different from the hypothetical drug blog? I'm not saying it's innocent, I'm saying there's some weird mismatch here where you can't go with a mile of a copyright infringement but you can get pretty close to normal crimes as long as you don't touch anything or join a conspiracy.
> and the closest I get to helping you buy some is telling you the chemical ID, I'm very easily on the legal side of things.
And if there was a tool that would pop out, at no additional cost, an instance of the drug based on the chemical ID, I'm fairly sure that it would be considered distribution. If it wasn't, then within short order, the law would likely be changed to fix that loophole.
Torrent sites merely hosting an ID that describes a file? You say that as if they are publishing UPC codes. The problem with that description is that clicking the ID launches an application that connects to other peers and proceeds to download the file in question in violation of copyright law. That's the entire point. The equivalent would be a site that contains an ID for illegal drugs, and when you click the link it connects to a pharmaceutical 3D printer that instantly constructs the drug from raw materials in violation of narcotics law.
> The equivalent would be a site that contains an ID for illegal drugs, and when you click the link it connects to a pharmaceutical 3D printer that instantly constructs the drug from raw materials in violation of narcotics law.
And the user had to previously choose how to route these requests to 3D printers through a completely independent application. The original site itself doesn't make the IDs do anything. By default clicking those magnet links does nothing at all. A UPC code is a good analogy.
So the printer is clearly doing illegal things. But is the original site illegal because a totally different person automated drug-buying? And it's not a pachinko setup either. These are truly independent actors.
"Golly, your honor, I had no idea that magnet links could be clickable and that, if people clicked, they could download the file, thereby facilitating copyright infringement..."
Good luck selling that line of argument. You might have an argument if the protocol actually did trigger off of unlinked UPC codes and sites didn't have to construct special links that conform to a standard (in which case you could download movies by browsing Amazon or IMDB). But if a site publishes magnet links there is no denying knowledge of what those links do. Or I guess you could try to deny but no judge or jury with an IQ over 50 would believe it.
I'm not saying the argument should be ignorance, rather that it should be lack of causality. The user has to specifically configure their system to turn these magnet IDs into a piracy opportunity. Or they have to copy each one into their torrent client of choice. Just like if I review an illegal drug and tell everyone exactly what it is so you can get the right thing from your supplier... I'm still not your supplier, I don't know who you are or where you go to buy such things. I'm not in the drug trade.
I'm sure I can find plenty of 5 star weed reviews that nobody would call illegal, even though they're calling out specific brands in a way that someone could trivially turn into a purchase.
By that line of reasoning you could publish a website with information on hitmen for hire and put their phone number beside each listing. After all it's just a sequence of numbers and the user has to manually call or configure their device to place the phone call.
That's more like a tracker. A closer analogy to magnet links is that I tell you a hashtag that's used by a particular sort of hitman, and you use that to find your own hitmen on the social media site of your choice.
I don't think causality is the right metric here, rather it's the fact that you're facilitating a criminal act -- you're making it easier for someone to break the law.
The proportional amount by which you facilitate the action ought to matter.
If a drug is going to cost you $50 and all I did was point you in the right direction, you still need to cough up another $50.
But if finding the right link and downloading some tool is all I need to do, then by providing the link you've taken me at least halfway, and maybe more if I already had the tool.
> _Your_ efficiency tools should not make _my_ actions more illegal.
Why would you expect that to be an invariant in the legal system?
Your actions take place in the context of the world; the context should affect how someone judges your actions.
The key point is whether you personally know (and if the prosecution can show it) that providing a link is tantamount to allowing someone to easily download it.
ISPs don't generally have to take down anything, at least not in the US.
Power companies and roads facilitate a whole lot. Zero legal responsibility there. You could make a pretty good argument that a road is responsible for quite a large proportional facilitation when drugs are bought.
Yes, but power companies and roads by and large facilitate legal activity, whereas sharing links to copyrighted content don't.
If you hypothetically ask me to make you a cup of coffee and it helps you stay awake so you can go commit a murder, I shouldn't be going to jail for that, unless my intent was to help you commit murder; and even then, I probably didn't help you very much.
On the other hand, if you come to me and ask me for the number of a local hitman, I should have a pretty good idea that I'm aiding and abetting in something illegal.
I think the problem there is more that you talked to me about finding hitmen, even if I didn't help.
If I merely let you access my directory of all the people in town sorted by job, there probably wouldn't be an issue.
A search engine is not a human. It can't be expected to preemptively filter out suspicious results. Google certainly doesn't.
In the end I just don't think it's right to shut down a site because of its userbase. We don't shut down roads when most of their traffic is criminals. And there's nothing inherently illegal about torrent search engines.
> We don't shut down roads when most of their traffic is criminals
Do you have an example of a road mostly used by criminals which the relevant authorities aren't trying to shut down? One where the criminals aren't actively bribing the authorities, obviously.
> they have a banner ad that gives then a thousandth of a penny
Forget about thepiratebay. It's children pocket money.
Remember the time of RapidShare/Megaupload? They were paying something like $5 per thousand downloads.
Let's imagine a popular DDL/streaming site sending one video. The next week it's been downloaded 100k times. That's $500 easy money for one upload.
Multiply that amount of money by the amount of movies, of tv show episodes, of video games (whose 20GB are split in 20 separate files).
That was the hell of a business model.
Now, let's think about the modern streaming sites. It doesn't monetize that way anymore. Instead it's putting aggressive ads on every fucking page + misleading widgets opening ad popups + affiliation with streaming services + useless redirection so visitor are forced to open more pages.
Illegal download/streaming are a very lucrative business and that's why there are so many of it. Noone is talking pennies there.
1. not everything is done for money, I see no ads on this website for example
2. If your question is to know wether a journalist would be concerned by the decision, it's easy to see he would not.
3. If the linker is linking to illegal content knowingly, and because he hopes a gain from it, I don't see how he would not be guilty. In your example, you would be guilty as hell.
4. Google don't know what is legal and what is illegal as long as nobody told them. They're protected in Europe as intermediaries by the Directive at least.
What the decision said is much closer to "or" than "and".
Such linking is, as your quote says, not infringement if it is done without pursuit of financial gain and is done by someone who does not or cannot reasonably know the illegality of the linked material. In other words, they decided that linking to illegally published material is copyright infringement if it was done for commercial purposes or by someone who knew that the linked material was illegally published.
The court also concluded that, if the linking was done for commercial purposes, it must be presumed that the person publishing the links knew that the linked material was illegally published.
> The court also concluded that, if the linking was done for commercial purposes, it must be presumed that the person publishing the links knew that the linked material was illegally published.
The judges will likely wash their hands of the matter as they neither know nor care how people are supposed to comply with the law. So it will boil down to lobbying by the people with money to ensure that their businesses can continue to operate. And if the requirements for compliance crowd out competition, so much the better.
Search for just about any desktop software with the words "crack", "serial", "torrent",... and search engines will show results. Most of it will be virus-laden crap, but that's a separate issue. Same goes for all forms of digital media.
depends on how they defined "knowingly". DMCA clearly defined this, but without some specific legislative definition of what constitutes knowledge it's open to interpretation which is a dangerous ambiguity.
Perhaps I could send a message somehow to some Google exed to remove a bunch of links that are to illegal content, wait 2 weeks then claim that was sufficient notice for them to be aware of the content and therefore meet requirement #2.
To be fair, I didn't dig to see if this second requirement is clearly defined.
Presumption of guilt is fascist. Prosecuting the accessory before the crime. Content is not inherently illegal in and of itself. Was it was actually found to be illegally published by an EU court? No. I would argue they have no copyright here. She is very much in the pubic domain. (sic)
The decision said that a link to illegal content can be illegal in itself when 1. it's done for monetary purposes, and 2. when the person creating the link was aware of the illegal nature of the content being linked.
But who would have doubted about that? Did you really think you could create links to illegal content for money and get away with it?
On the other side, it clarifies the fact that a link to illegal content will not be illegal if it's done for free, or if it's done without knowing the illegal nature of the content being linked.
To quote the decision : "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."
From my perspective, it's a good decision.