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EU court says that linking to copyrighted material doesn’t count as infringement

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It’s widely agreed throughout the world that uploading content created by someone else to the Internet without their permission is against the law. Things get murkier, however, when it comes to sharing a link to that same material. Many websites explicitly prohibit this in their terms of service, and some rights holders try to act as if it is illegal, but it seems we’re now moving closer to an official decision.

Europe’s top court has weighed in on the matter as it relates to a copyright case that started in 2011. The European Court of Justice said on Thursday that simply linking to a site containing copyrighted material isn’t the same as actually publishing the materials, according to a report from Reuters.

“Hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery,” EU Advocate General Melchior Wathelet said in a statement presenting his opinion.

This opinion was given to a Dutch court relating to a case where the blog GeenStijl linked to a website based in Australia hosting leaked Playboy photos of a Dutch celebrity. The site had posted these photos without consent, and the images were eventually pulled, at which point GeenStijl simply linked to a different site offering the same photos.

As the statement given by Wathelet was an opinion, it isn’t legally binding. Still, it’s an opinion with considerable weight considering where it came from. The judgment in the GeenStijl case won’t be out until later this year, at which point it might be considered legal precedent.

It’s worth noting that this still wouldn’t provide a free pass to sites like The Pirate Bay, or to services like PopcornTime, who claim that their services are legal because they don’t actually host any of the copyrighted content. The nature of the site — in the above two cases, the sites are directed almost exclusively toward sharing copyrighted material without permission — would still be taken into consideration.

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