Dutch court says linking is not a copyright breach

A Dutch appeals court has ruled that providing hyperlinks to infringing copyrighted material does not count as a breach of IP.

The Amsterdam Court of Appeal cleared website GeenStijl.nl of infringing Playboy’s copyright when it linked to leaked nude pictures due to be published by the adult magazine.

GeenStijl.nl, a blogging site, had published an article in October 2011 about pictures of Dutch TV presenter Britt Dekker that were set to be released by Playboy two months later.

The article contained a link to a zip file with the pictures, hosted on file-sharing site filefactory.com, before being updated with a link to ImageShack, a site that hosts photos. Two more articles with links were later published.

After Playboy sued for copyright infringement, a lower Amsterdam court said the hyperlinks were a new publication – and therefore infringed Playboy’s rights.

But that decision was overturned by the city’s Court of Appeal on November 19, though the court said GeenStijl.nl had unlawfully published Playboy’s photos, ordering it to pay unspecified damages.

The ruling is the second in the Netherlands to confirm that linking to infringement is not a copyright breach itself, while a third decision said otherwise. In that case, a court in The Hague found that the embedding of radio streams on two websites, one of which was nederland.fm, constituted copyright infringement.

The rulings have been part of a big discussion on whether linking is infringing, said Bjorn Schipper, a lawyer at Bousie Advocaten in Amsterdam, but the latest decision confirms the “accepted” rule.

“We now have at least two decisions that say linking is not an intervention and therefore not an infringement,” he said.

“I am glad with the outcome of this decision, as I was afraid after The Hague decision (Internet radio station site Nederland.fm), but the Amsterdam court stipulates the general rule.”

Schipper added: “The ruling applies only to this case, but because it is an appeals court and they have made some general considerations, a lot of parties could use this decision in their cases about whether hyperlinking is an infringement.”

“The discussion will be ongoing,” Schipper said.

There are at least two cases in which the Court of Justice of the EU has been asked to rule on whether linking to infringing material is a copyright breach. The cases, both referred from Sweden, are expected to be decided next year.