Hyperlinking to unlicensed Playboy photos is not copyright infringement says Advocate General

Hyperlinking to unlicensed Playboy photos is not copyright infringement says Advocate General - Lexology: "In order to establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy the works. The AG referred to the case in Football Association Premier League and Others (C-403/08 and C-429/08) where the owner of a pub intentionally gave his customers access to a copyright-protected broadcast, without which access, they would not have been able to enjoy the broadcast works.

He considered that it had to follow that hyperlinks posted on a website which direct to copyright-protected works freely accessible on another website cannot be classified as an ‘act of communication’ because the intervention of the website operator which posts the hyperlink, in this case GS Media, is not vital or necessary to enable users to access the Playboy photographs, including those who visit the GeenStijl website.

It is also not sufficient that the hyperlink facilitates or simplifies users’ access to the work in question.
Even though GS Media was aware that the photographs on Filefactory.com and Imageshack.us had been leaked but had still provided hyperlinks on the GeenStijl website 'in flagrant violation of the rights of the author of those works', because there was no act of communication,

GS Media’s motives and the fact that it was or ought to have been aware that the initial communication of those photographs on the other websites had not been authorised by Sanoma were irrelevant." 'via Blog this'