by Cesare Rocchi

Linking and Copyright Infringement

by Cesare Rocchi

Tags: copyright

The EU Court has made a pretty complicated decision a few days ago.

Quick recap. A publisher linked to copyrighted material, which was published without consent somewhere in Australia. When the Australian website took down the content, the publisher updated the links to point to another website, still hosting the same content illegally. Recidivist behavior, essentially.

Every search engine links to external content. I don’t know how this resolution will impact the business of search engines, but Google and friends probably have the (computational, monetary and legal) power to come up with a solution that complies with EU rules.

Now let’s pretend I run a company that hosts blogs or podcasts. Key question:

Is my hosting company liable for the links that are contained in the content hosted on my servers?

If the answer is no, I take a deep breath and I am happy. In this case I assume the account (and domain) owner, the dude/gal pressing the publish button is the one responsible. The EU will knock and their door if there’s something wrong. But it seems too easy.

What if the link to copyrighted material is published on a subdomain, like coolwebsite.myhostingcompany.com?

I am responsible for the main domain, so I am liable as well I guess.

I could put a disclaimer when a customer creates an account, saying (in a better legalese) “you are responsible for all the content (and links) published under this account, if the EU knocks at my door, I’ll send them your way”.

It’s complicated. And it’s easy to tweak a few rules so that any hosting company is considered a publisher, or a person of interest.

I have mentioned podcasts. Should I listen to all the audio submitted by my customers and approve it before publication? It doesn’t seem feasible.

While I think the EU is in principle correct in punishing a recidivist behavior, I hope this doesn’t open a can of worms in which a simple hosting company has to police every single link that goes out of its servers.

UPDATE Sept 16th 2016: This decision seems to clash with another one, in which providers of free Wi-Fi (like shops) are not liable for copyright infringements by users. Why hosting providers should be liable for just hosting links to copyrighted material?

Finding a sense in all this is pretty difficult.