EU courts may not share enforcement body's view that linking to infringing material is itself illegal, says expert

Out-Law News | 28 Aug 2012 | 4:18 pm | 3 min. read

The Federation Against Copyright Theft (FACT) may have wrongly interpreted copyright laws when ordering operators of a link-sharing website to remove all links from the site, a technology law expert has said.

Luke Scanlon of Pinsent Masons, the law firm behind, said that FACT's conclusion that linking to copyrighted content is itself an act of infringement may not be true. Scanlon was commenting after operators of the UKNova website acted to remove links to TV programme content that users had shared with one another after being served with a 'cease and desist' notice from the enforcement body.

"UKNova is being forced to change," the operators said in a message sent to site users, according to a post on the UKNova forum. "We have been issued with a 'cease and desist' order by FACT (The Federation Against Copyright Theft). Despite our efforts to cooperate with the UK media companies, FACT have stated: 'ALL links or access to content provided by UKNova are infringing, unless it can be proven that explicit permission from the copyright holder for that content has been obtained'."

"Whilst we believe that they are wrong both legally and morally on account of the strong 'no commercial content' stance that we have always taken, we are not in a position to be able to risk lengthy and costly court battles to prove this. Therefore we have no other option but to close down the trackers. It has not been an easy decision to take, but it is apparently our only option," the message said. "The forums will remain open for business as usual. Torrents and their associated pages will disappear over the next few hours."

According to a statement on the FACT website, "both hosting unauthorised content and providing links to unauthorised content is illegal." However, Scanlon said such a black-and-white view of the legality of linking to copyrighted material had not been approved by the courts.

"FACT appears to be taking a hard line as to the consequences of merely providing links on a website in terms of copyright infringement as opposed to hosting infringing content," Scanlon said. "If a website were to host infringing streaming media, it would be making that content available to the public in breach of copyright laws. But can a website owner who does not store or copy content infringe copyright laws?"

"It is interesting that only a few weeks ago, Richard Posner, a renowned legal commentator and US judge, in a Court of Appeals decision, came to the conclusion that under US law, the act of providing a link on a website, without storing or copying content, cannot of itself amount to an act of direct copyright infringement, or even an act of facilitating copyright infringement unless that website owner is actively inviting or inducing its users to upload links to infringing content," Scanlon added. 

"US copyright law does differ in some respects from European laws in regard to the concepts of distributing copyright works and 'making works available' to the public. Substantively though, both laws align with the international copyright agreements and ought to be interpreted consistently, at least that is the view that the European Court of Justice (ECJ) takes to copyright law interpretation," the expert said.

"It is uncertain how the European Court of Justice would rule if given the chance on this issue," he added. "They may come to the conclusion that, as FACT is advocating, a link to infringing content itself makes that content available to the public. On the other hand, it would be open to the court to find, as Judge Posner has in the US context, that providing links may be equated to providing merely 'contact information' for the location at which content may be found and not an act of infringement so long as the site owners themselves do not store or copy the content or actively facilitate users to do so."

UKNova is free to use and the operators set rules about using the site and uploading, which include placing a bar on users uploading material which is "available commercially" on DVD, VHS or other media or which is "due for imminent commercial release".

"None of the shows that are available from UKNova are stored on our servers" a statement on the site states. "The UKNova website does not itself ‘share’ any copyrighted material with anyone else. It simply allows people who wish to share programming to link up with one another, using the BitTorrent protocol. It is one of the fundamental principles of UKNova that we do not wish to cause any harm to potential revenue streams for broadcasters and programme makers. For this reason, no television or radio programme that is available for purchase worldwide from retailers, on CD, DVD or video, is allowed to be shared on this website."

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