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Dutch Court Rules Hyperlinks Can Constitute Infringement

samzenpus posted about a year and a half ago | from the watch-what-you-link dept.

The Courts 203

Ubi_NL writes "In yesterday's ruling of Playboy (via publisher Sanoma) vs Dutch blog Geenstijl, the court ruled that hyperlinking to copyrighted material was itself infringement of copyright. The court ordered the blog to remove all links to the infringing links (court ruling in Dutch). How this ruling fits into the supreme court ruling that hyperlinks cannot by themselves infringe copyright is still to be discussed, possibly in an appeal."

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203 comments

And standing next to me is stealing my air (-1)

Anonymous Coward | about a year and a half ago | (#41332523)

Since when did the Dutch start to appoint justices as dumb as America's Thomas?

Re:And standing next to me is stealing my air (5, Interesting)

Znork (31774) | about a year and a half ago | (#41332611)

Unfortunately it doesn't seem that new, there's also the judge Chris Hensen who happened to be running a commercial anti-piracy together with the council for the plaintif while deciding that links to TPB should be blocked.

Frankly I suspect it's rare with members of the various parts of the judicial system in the field of IP who do not have significant financial interest in enforcing IP. Whether it's revolving door interest or more blatant abuses the field of government granted monopolies has always been lucrative for those on the inside, which probably makes the field very attractive for those with slightly lower ideals than what could be expected in a judiciary.

Re:And standing next to me is stealing my air (3, Interesting)

mumblestheclown (569987) | about a year and a half ago | (#41333079)

I think your wild, conspiratorial accusations are completely out of line.

Slashdot and its biases theories aside, there are a lot of grown ups out in the world who have looked at IP law in general and, while perhaps accepting that there are occasional absurdities and oddities around the edges that do need to be worked out, have concluded that it is fundamentally good. They (we) have looked for this from multiple angles, including econonomic theory, economic REALITY (we now have excellent examples of rates of development vs strength of IP regulation - and guess what - IPR does seem to matter quite a bit), and ethics. You may disagree - you may have your own arguments against IPR - fine, fair enough - but for you to immediately proclaim " I suspect it's rare with members of the various parts of the judicial system in the field of IP who do not have significant financial interest in enforcing IP. Whether it's revolving door interest or more blatant abuses the field of government granted monopolies has always been lucrative for those on the inside, which probably makes the field very attractive for those with slightly lower ideals than what could be expected in a judiciary." is irresponsible and juvenile.

Re:And standing next to me is stealing my air (2, Insightful)

Anonymous Coward | about a year and a half ago | (#41333183)

Hey, well as long as you have looked at it from multiple angles and reached a conclusion you must be correct. In fact, I'll bet your facts, logic, and statistical models are unimpeachable. Referring to IPR instead of copyright, trademark, and patent protection was the coupe-de-grace...

Re:And standing next to me is stealing my air (3, Interesting)

Hazel Bergeron (2015538) | about a year and a half ago | (#41333185)

there are a lot of grown ups out in the world who have looked at IP law in general and, while perhaps accepting that there are occasional absurdities and oddities around the edges that do need to be worked out, have concluded that it is fundamentally good.

Isn't that the very problem the parent was describing? The judiciary should not be concluding that particular laws are fundamentally good, but applying them indifferently.

If nothing else, more law guarantees more work, so an impartial judiciary would not even celebrate the existence of some body of law.

Re:And standing next to me is stealing my air (2)

Caesar Tjalbo (1010523) | about a year and a half ago | (#41333243)

I think your wild, conspiratorial accusations are completely out of line.

The problem is: we don't know. The legal world of IP (judges, lawyers, academia) is pretty small and specialized. The same judges handle the majority of cases, lawyers are also professors. All of them appear on commercial seminars. You can't speak of "wild, conspiratorial accusations" if key players don't try to avoid the suggestion of conflicts of interest.

All we have are the interpretations of law, treaties and precedents. General line: behavior on internet is being molded into the existing IP framework. Specific example from a different case: to the courts there's a difference between a 'link' (not infringing) and a 'deep link' (infringing). That's not to say the every ruling is suspect, in fact most are well researched and well thought even if the conclusion is less desirable, but rulings (and laws, treaties) aren't necessarily realistic, sensible or fair. Judges go far in explaining the law so that, another example, search engines for usenet can be found to be infringing themselves, not just facilitating.

there are a lot of grown ups out in the world who have looked at IP law in general and, while perhaps accepting that there are occasional absurdities and oddities around the edges that do need to be worked out, have concluded that it is fundamentally good.

Here's an oddity to think about: Dutch copyright is based on the exclusive right to publish and multiply a (copyrightable) work. How is that exclusivity possible when talking about computers which do nothing but copying, let alone internet? Is the working of computers and internet "fundamentally" wrong? Or, in this case, is it "fundamentally good" to blame a blog for infringing when it posts a link to leaked material?

Re:And standing next to me is stealing my air (5, Insightful)

fustakrakich (1673220) | about a year and a half ago | (#41333285)

Your naivete is endearing, or at least it would be if there wasn't so much needless BS for people to suffer.

You may disagree - but yes, the system is inherently corrupt, designed to have everyone clawing their way over each other to the top of the heap. Nothing 'conspiratorial', just normal, everyday nature at work. All other systems work precisely the same way. It is universal. It is also a scientifically proven fact that authority WILL be abused. Please, don't try to tell us it is not being so abused in this case, like so many others. That would be absurd. Your society feels that this level of abuse is acceptable. But that doesn't make it any less abusive. If this were 1820, would you be arguing for the property rights of the slave owner? Would you not condemn people if you witness them abusing an animal?

This little 'IP' business must be turned away completely. You seem to believe it's helpful to society, but it's only because it's convenient for you to believe propaganda at this point, for whatever reason.

You teach 'ethics' through guidance and example, not by dictate and prohibition. And you can foment nothing but disrespect when you don't apply the rules evenly, just like a coat of paint.

Re:And standing next to me is stealing my air (0)

Anonymous Coward | about a year and a half ago | (#41333295)

Except for the bit where it's true. By the way, paid shill, I hope your kid downloads a couple of Nickelback CDs. Then, if you can still tell me $40 = $ 200,000 with a straight face, I will know they're holding your family hostage to ensure your good behavior.

Re:And standing next to me is stealing my air (1)

hairyfeet (841228) | about a year and a half ago | (#41333201)

You just hit the nail on the head, blatant bribery has turned the judicial system into a kangaroo court.

Once upon a time we had this notion called "conflict of interest" where if the judge didn't recuse themselves the superior courts would toss the case and give the judge a good ass chewing to boot. Now it doesn't matter how blatantly the judge is involved with one side, nobody will say squat and the corps know this. Frankly the whole thing is just sickening..

Re:And standing next to me is stealing my air (3, Insightful)

DJRumpy (1345787) | about a year and a half ago | (#41333005)

Can't agree more. These links could sit out there for 50 years, and if no one knew about them or no one used them, not a single case of infringement would happen. Simply pointing to 'stolen goods' (I use that term with tongue in cheek) doesn't make the finger pointer guilty of infringement.

It's kind of ridiculous as to the power the media companies are employing in the courts and in the political system.

Re:And standing next to me is stealing my air (2, Insightful)

mumblestheclown (569987) | about a year and a half ago | (#41333095)

You don't seem to understand how IPR works. As it works in most countries, "infringment" is a judgement call based on intent, amount, use, and so forth. For example, I can link to CNN.com from my homepage. No problem there. However, let's say CNN one day accidentally uses a picture that they dont have the rights to there. Am *I* guilty? no judge in the world would say yes. On the other hand, let's say I make a direct link on my homepage to "get your free copy of (latest hot movie here)" which direct links to a page or actual file on somebody else's site. What this ruling says is that the judge CAN consider this and CAN treat this differently, as damn well he should be able to.

Re:And standing next to me is stealing my air (4, Insightful)

DJRumpy (1345787) | about a year and a half ago | (#41333117)

If we follow your process through to the logical conclusion, then it would imply that the person linking to the content intended to download every linked object, which is patently ridiculous. The person creating the links doesn't necessarily intend to do anything with the links other than to profit from site visits via ads or whatnot.

Note that in both of your examples, you are the one linking to and accessing the IP in question.

This is a dangerous judgement, make no mistake. It opens up any search engine which frankly is an algorithm and not self aware. These just scrape sites and produce the links. There is no 'intent' there.

Re:And standing next to me is stealing my air (0)

Anonymous Coward | about a year and a half ago | (#41333231)

except that this ruling is the OPPOSITE of what you just said.

piss off, troll. I don't know what your stakes are here (considering low UID) - but third party liability is not acceptable in any instance.

Re:And standing next to me is stealing my air (1)

fustakrakich (1673220) | about a year and a half ago | (#41333345)

This ruling is a direct infringement of free speech rights, which I understand is not codified into Dutch law, but it is infringement, much more offensive than that of copyright can ever be. I suspect that you yourself have a dog in this race, as 'IPR' is for the most part, completely indefensible.

The specific ruling: (5, Informative)

Anonymous Coward | about a year and a half ago | (#41332531)

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

- Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.

- New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.

- Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

Taking the three criteria and the circumstances of this specific case into account, the court concludes that GeenStijl.nl has infringed on Sanomas copyrights by publishing the URL to the leaked nude pictures of Britt Dekker.

Security by obcurity? (3, Interesting)

Anonymous Coward | about a year and a half ago | (#41332565)

So Dutch courts protect Security by Obscurity?

No surprises here. Judges have as much of a clue of those things as the sec department in my company. Oh, wait...

Re:Security by obcurity? (4, Insightful)

Grismar (840501) | about a year and a half ago | (#41332647)

This not a simple case of security through obscurity, though. If it were, then all physical cylinder locks or password security could also be considered "security through obscurity". After all, the security only lies in not publishing the exact configuration of bumps on the key required to open the lock, or the characters making up the password.

The point in this case is that the public had no means of guessing or finding the URL other than trying every possible combination. GeenStijl provided the public with the right combination (the key or password if you will) and this is where their publication further infringes on the copyright.

Re:Security by obcurity? (1)

Anonymous Coward | about a year and a half ago | (#41332811)

yet somebody managed to find the link and pass it on to geenstijl.nl
-> obviously the position that the link was unfindable is false

Re:Security by obcurity? (2)

Eraesr (1629799) | about a year and a half ago | (#41332849)

That is such a short sighted thing to say. You have no idea who supplied the link to GeenStijl. It might've been someone working internally at FileFactory or even PlayBoy.

Re:Security by obcurity? (0)

Anonymous Coward | about a year and a half ago | (#41332955)

To expand on your analogy: they don't have a lock (== HTTP authentication), they just hide their entrance door. C'mon. Of course, somehow mathematicalls, hiding the door appropriately and not publishing the bump configuration on the key are somehow equivalent. But still you and me know the difference, and I'd hope a judge deciding on the case should, as well.

But hey. My opinion on the legal profession has deteriorated over tens of years steadily.

Re:Security by obcurity? (4, Insightful)

v1 (525388) | about a year and a half ago | (#41332959)

This not a simple case of security through obscurity, though.

I see this from a different point of view. There are two distinct things I'd consider here, the link itself (separate from the content it takes you to), and the act of directing you to content owned by someone else.

Most of us have had exposure to people trying to get links taken down. What has to be considered here is what they're trying to claim for protection. The actual provider of the content is not the link. It's what's at the other end of the link, which in these cases is the person claiming to be wronged. I don't see them having any right to claim infringement of content because they alone are the ones providing it. I don't see any difference between this and say for example, my posting a note on a telephone pole saying "go to SuperScreen Theatre and watch Xmen 7". I'm not infringing on their ownership of anything xmen, I'm merely informing people that you're offering it. There's no fundamental difference in what I have done if XMen 7 is a regular paid show or a free-of-charge sneak preview that SuperScreen actually only informed a small group of people about. The difference there being one showing was public or charge normal, and the other was a "free if you know about it" kind of thing. But there was no difference in my posting of the notice. The only change was on the provider's end, and why should that change the legality of what *I* did?

So at least how I'm seeing it, the providing of the link itself should be legal, and that's what most people here will also be assuming.

But then we have to address the url itself. If it contains a secret parameter such as a unique ID, login, etc, is it legal to give that way? And I mean in any form, not just an easily clickable hyperlink. You can't call it a trade secret because you're sending it out to at least a subset of the public. It's a fact so you can't copyright it. An unauthorized person using it could be charged with unauthorized access (using credentials that were "stolen") but the person providing the link isn't the user so that doesn't apply to them. (and then you get into the IMHO completely BS concept of "contributing to infringement" etc) I don't see any angle to view this as illegal.

I think this is just some frustration on the part of the providers. They had a system in place that was assisting with their revenue, was convenient for them and their customers, and was mostly under their control. A bit like mailing out coupons to some of your good customers. But then they decided to change how their offer was being sent out, say for example by emailing their customers links to the coupon to download and print out. But now someone has posted the url to that coupon so it'd available to a lot of others. So others are going there and downloading and printing the coupon too, which is not what the provider intended or wants to have happen. So they're looking for a way to call what the poster is doing is "illegal" - not because it IS illegal, but merely because they want it stopped. The provider has no real ground to stand on, other than "I don't like it, I didn't intend for that to happen." They made a change to make things more convenient for themselves and their customers, and in doing so they gave up a bit of control over who they were giving things away to. They switched from using a secured private distribution method to using an insecure public distribution method. They continue to claim "privacy" but they themselves made it public. It's no different than my opening the curtains at my house and then getting upset when people look in my window. What I want doesn't have any bearing on what you see, I'm the one that made it available and it's my fault that you were able to see it. I have no right to demand you look the other way.

Re:Security by obcurity? (2)

vrt3 (62368) | about a year and a half ago | (#41333211)

The actual provider of the content is not the link. It's what's at the other end of the link, which in these cases is the person claiming to be wronged.

That's incorrect actually. I read the verdict (I speak Dutch), and what happened is that the photos leaked and were uploaded by some unknown person to FileFactory.com and later to other filesharing sites. GeenStijl.nl posted an article saying "hey, Britt Dekker's nude photos are leaked, you can see them OVER THERE".

I don't know how GeenStijl.nl came to know the URL. Got a tip from the person who leaked the photos, I guess.

As someone here said: the case is more nuanced than would appear from the summary, but I don't really know what to think of it.

Re:Security by obcurity? (0)

Anonymous Coward | about a year and a half ago | (#41333165)

So if I tell no-one where I live, my house will never be burgled. Good.

That's how it works (2, Interesting)

Kupfernigk (1190345) | about a year and a half ago | (#41332653)

Lawyers totally depend on security through obscurity. Laws are deliberately made made vague and obscure, thus providing job security for lawyers.

Re:Security by obcurity? (4, Interesting)

Erik Hensema (12898) | about a year and a half ago | (#41332767)

Copyright law protects Security By Obscurity. So the judge was correct in this case.

In order in infringe on copyright law, you'll have to make a copied work public. So, as long as you don't publish a copied work (i.e. keeping it obscure), it's not an infringement. This, for instance, allows you to make a private copy of a copyrighted work without infringing on copyright law.

In this case, a private copy was made. Nobody knew where to find the copy, except for the person who placed the copy online. So, while the copy was on the internet, it wasn't public. Geenstijl made the copy public by making the URL known to the general public. Therefore Geenstijl infringed on dutch copyright law.

Re:Security by obcurity? (1)

gr8_phk (621180) | about a year and a half ago | (#41332969)

In this case, a private copy was made. Nobody knew where to find the copy, except for the person who placed the copy online. So, while the copy was on the internet, it wasn't public. Geenstijl made the copy public by making the URL known to the general public. Therefore Geenstijl infringed on dutch copyright law.

No, someone placed the copy online and then gave the URL to someone else - that would constitute infringement by your own definition. That the someone else made the URL available to the public would be further infringement. Never mind that if the person who put them up there didn't own them already, there was yet more infringement. And if the company actually put them up there then they are rather stupid IMHO.

Re:The specific ruling: (3, Informative)

Walterk (124748) | about a year and a half ago | (#41332651)

[..] FileFactory.com, a cloud service to store files and share them with others. However, these files canâ(TM)t be found through search engines, only users with the exact URL have access to the files.

Wrong. As some other posters have already shown [slashdot.org] , google happily indexes and searches FileFactory.

Re:The specific ruling: (4, Insightful)

Racemaniac (1099281) | about a year and a half ago | (#41332701)

But always, or only after an other site made a link to it? The point is not whether it shows up in google now, but whether it would have shown up if no site linked it in the first place. And even if it can be found via google, if it has some generic name not saying what's in it, it's still unlikely anyone would find it.
The judge is saying that by hyperlinking it, geenstijl made it findable for everybody. And if that is the case, he might have a point. If them linking actually made it accessible for everybody (why before that it wouldn't have been possible to find those files, or extremely unlikely), then they did more than just linking... Of course you can still argue they didn't upload it, which is also true. But i can understand the decision somewhat (doesn't mean i agree with it). This is different from just linking to a youtube video you could have just as easily found using the search function of youtube.

Not sure which side i'd choose, but it's not so black & white as many here claim it to be.

Re:The specific ruling: (4, Interesting)

1u3hr (530656) | about a year and a half ago | (#41332747)

Wrong. As some other posters have already shown, google happily indexes and searches FileFactory.

No it doesn't. FF blocks indexing. See http://www.filefactory.com/robots.txt [filefactory.com]

Google indexes links to FF it finds on other sites. You can't just get a file listing of uploads to FF from FF (well, maybe with a court order).

Re:The specific ruling: (1)

beelsebob (529313) | about a year and a half ago | (#41332773)

That's nuts? What's to stop me from asking a friend to link to them, making them appear on google, and then linking to them?

Re:The specific ruling: (0)

Anonymous Coward | about a year and a half ago | (#41332909)

"Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy."

But that's silly. Pssst ... if you go to the lowest shelf at the back wall of the basement of the library (behind the door marked "Beware of the tiger"), you can find a book with otherwise unpublished pictures of Britt Dekker stuffed between the pages. I don't see how telling people that location can constitute "copyright infringement". That's all a link is doing. "It's over here, on this web site, with this file name." That's copyright infringement? I can understand whoever uploaded the file being brought up on charges of copyright infringement, and same for whoever downloaded it from that link, but just saying what the link is? Weird. I guess the obvious indications that the site benefited from the publication is a decent argument, but I can see where this precedent is going to lead to some odd situations.

Dutch servers becomes the untouchable? (3, Insightful)

Taco Cowboy (5327) | about a year and a half ago | (#41332533)

I'm not very clear on the jurisdiction of the Dutch court - but if hyperlinking equals infringement ruling only applies on sites which are hosted on Dutch servers, this will effectively make Dutch servers sort of the "untouchable"

Why would anyone want to host their sites on a Dutch server where court ruling such as puts on insane and unnecessarily limit?

Re:Dutch servers becomes the untouchable? (0)

Anonymous Coward | about a year and a half ago | (#41332623)

Not everyone hosts their site only for the purpose of publishing someone else's copyrighted material.

Re:Dutch servers becomes the untouchable? (0)

Anonymous Coward | about a year and a half ago | (#41332655)

But just about anyone does have links to other people's copyrighted sites.

Re:Dutch servers becomes the untouchable? (0)

Anonymous Coward | about a year and a half ago | (#41332831)

Except the ruling specificly states that the reasoning must include that people shouldnt have been able to just google the same stuff and that a profit was made by the defendedant making the link public.

Why should visibility on google be a factor? (0)

Anonymous Coward | about a year and a half ago | (#41332967)

And, since this post is copyrighted (me) but is VERY unlikely to EVER appear on Google, is slashdot now (because it gets paid for ads on the site) in violation of my copyright?

Re:Why should visibility on google be a factor? (0)

Anonymous Coward | about a year and a half ago | (#41333109)

No, you willingly chose to post it on Slashdot. That was your act.

Why do people like you ask stupid questions that ignore the actual reality of the situation?

About time... (1)

Anonymous Coward | about a year and a half ago | (#41332535)

Those pesky search engines keep linking to my web pages without permission.

What's up Netherlands? (3, Insightful)

Lord Lode (1290856) | about a year and a half ago | (#41332561)

First all your websites have to put an annoying message at the top saying they are using cookies (duh, who doesn't).

Now this.

Re:What's up Netherlands? (5, Informative)

Anonymous Coward | about a year and a half ago | (#41332667)

the cookie deal is european wide legislation. each nation is free to implement it with their own law provided it at least satisfies the requirements in the european law.

Re:What's up Netherlands? (2)

xSander (1227106) | about a year and a half ago | (#41332801)

Yeah, and the Dutch "cookies law" is much more rigorous as a result. BTW, it's not really a cookies law, it's a law that requires websites to ask permission to track their visitors through whatever method, even IP addresses (as those can be tied to a specific person in most cases.)

Re:What's up Netherlands? (2)

fnj (64210) | about a year and a half ago | (#41333087)

even IP addresses (as those can be tied to a specific person in most cases)

I know we're talking about Dutch privacy law in particular here, but that idea is so pernicious, and the mafiAA loves the lie so much, that it should never go unchallenged. So the following is in NO WAY an attack singling out you or your post.

The idea is BULLSHIT. Granted, it does use weasel-wording ("tied to" and "in most cases"), and It may (or may not) be legally recognized and upholdable bullshit, but bullshit is bullshit. The MOST a public IP can identify is a single host, not single person, and generally it only identifies a group of hosts, again not people.

1) Almost all businesses use many-to-one NAT for access by employees and others to public internet. Every desk and every notebook looks like the same IP to the public internet.

2) A large fraction of home users have wireless routers with many-to-one NAT. Any member of the family, and any visitor to the house, is on the same IP. If the wireless is open, anybody passing nearby outside can look like the same IP, whether wired or wireless, and if it's in an apartment or in a house close to other houses, a lot of neighbors can look like the same IP. If the wireless is secure, it could be hacked, with the same result.

3) Even if the subject is some kind of cheap lightweight with a single PC connected direct to DSL or cable, it must be recognized that it is more than likely that the subject has allowed and does allow others (family, friends, visitors on official or casual business or pleasure, etc) to sit in front of the PC and use it.

If "contraband" is traced to the IP, only by invading personal privacy and examining ZE PARERSSS (i.e., forensics on the hosts) can a prima facie case be made that some individual MAY (NOT ipso facto MUST) be at fault for violating an evil, immoral law.

Re:What's up Netherlands? (0)

Anonymous Coward | about a year and a half ago | (#41333187)

Even then, it still only points to a computing device. Not a user directly.

Re:What's up Netherlands? (0)

Anonymous Coward | about a year and a half ago | (#41332777)

Website do not need to report that they use cookies. Websites need to explicitly ask permission when they want to track a user, unless it is absolutely vital for the website to function (like a shopping cart, or survey spread over multiple pages). There is a large difference between the two.

The law gets a lot of flak, but only because tracking users has become so ubiquitous and nobody wants to put in any work to comply (mostly: finding an advertising network that does not track its users).

Cookie warnings (0)

Anonymous Coward | about a year and a half ago | (#41332913)

I don't think it's annoying at all to be notified that a website wants to track me. I think it's bloody annoying when they track me without telling me.

And it doesn't apply to cookies that are needed to make the website function. It doesn't apply to session cookies, and from what I understand also not for "save my preferences" and similar cookies. It applies to cookies that aren't linked to functions that are obvious to the visitor. If a site can't be straightforward enough to funtion without being annoying they should have a critical look at themselves. The majority of Dutch websites I visit don't seem to have a problem. Advertisers might try to fall back to choosing the ads they show based on the content of the web page instead of on the person visiting it. They used to be quite capable of doing that before they were able to track everyone.

Dutch privacy law basically states that data you store may only be used for the purpose it was collected for. A shop can for instance store debit/credit card data for the purpose of handling payments, but may not use it for connecting the dots between what a customer buys. Of course they try: recently the largest Dutch railway company has been reprimanded by the Dutch privacy watchdog for collecting detailed data about traveling behaviour of holders of supposedly anonymous electronic tickets (OV-chipkaart, similar to the London Oyster card). They have stopped collecting this data and have destroyed what they had collected.

The cookie law makes sense from this perspective: if you want to collect more data or do more with the data than what is needed to perform the function you offer to the visitor then you have to ask their permission for it. Privacy is the right to be left alone, it means that it is not acceptable for others to be as nosy as they possibly can be about your life.

sgg63562hwyv6572vu (2, Informative)

Anonymous Coward | about a year and a half ago | (#41332571)

"However, these files can’t be found through search engines, only users with the exact URL have access to the files"

trolololo:

https://www.google.nl/search?q=site%3Afilefactory.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#q=site:filefactory.com+filetype:zip&hl=en&client=firefox-a&hs=QUX&rls=org.mozilla:en-US:official&prmd=imvns&filter=0&fp=1&biw=1440&bih=770&cad=b&sei=Gd9RUKvyD-mc0QWBmoCQDA&bav=on.2,or.r_gc.r_pw.r_qf.&sei=2fRSUNy8KKGm0QWOroH4Cw

https://www.google.nl/search?q=site%3Afilefactory.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#hl=en&client=firefox-a&rls=org.mozilla:en-US%3Aofficial&sclient=psy-ab&q=site:filefactory.com+720p&oq=site:filefactory.com+720p&gs_l=serp.3...4732.8524.4.9049.5.5.0.0.0.0.365.1238.0j3j0j2.5.0...0.0...1c.1.B59GNHkYEVg&pbx=1&fp=1&biw=1067&bih=493&bav=on.2,or.r_gc.r_pw.r_qf.&cad=b&sei=2_RSUOvGGqet0QWXrICoCw

https://www.google.nl/search?q=site%3Afilefactory.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#hl=en&client=firefox-a&rls=org.mozilla:en-US%3Aofficial&sclient=psy-ab&q=site:filefactory.com+HD&oq=site:filefactory.com+HD&gs_l=serp.3...27593.28006.8.28612.2.2.0.0.0.0.86.123.2.2.0...0.0...1c.1.cBIjdvh2Hig&pbx=1&fp=1&biw=1067&bih=493&bav=on.2,or.r_gc.r_pw.r_qf.&cad=b&sei=3fRSUL6iBM2Z0QX2koCoDw

Re:sgg63562hwyv6572vu (2, Interesting)

Anonymous Coward | about a year and a half ago | (#41332607)

The point is that a query like "britt dekker nude pictures" would not (at that time) return the links that they published.

When it would be legal to post links like that, everyone could get around copyright issues by putting their material at some filesharing host and linking it on the main site.
The judge considered that to be unacceptable.

Re:sgg63562hwyv6572vu (0)

Anonymous Coward | about a year and a half ago | (#41333085)

So now they need to make sure that google can find them before they post the link, that should be feasible...

Inventor of hyperlinks is turning in his grave! (0)

macraig (621737) | about a year and a half ago | (#41332615)

Oh, wait... he's very much alive and fuming about this bullshit.

Re:Inventor of hyperlinks is turning in his grave! (1)

lightknight (213164) | about a year and a half ago | (#41332753)

Indeed. For the life of me, I can't understand what twisted logic and absence of technical knowledge is required to come up with many of the internet-related ruling these past few years. I keep hearing them, and think, "Surely you jest!" But no, they're actually being serious.

Constantly explaining the facts of life to people who really do live in bubbles is slowly eroding my own sense of sanity. "Do our thinking for us, but let us have veto control over it in case what you're saying displeases us" -> Gah!

Re:Inventor of hyperlinks is turning in his grave! (0)

macraig (621737) | about a year and a half ago | (#41332793)

When even the people responsible for conceiving and popularizing its usage are saying these rulings are bullshit and being ignored, you know the people doing the ruling are completely delusional. Or evil. Or both.

Re:Inventor of hyperlinks is turning in his grave! (1)

fnj (64210) | about a year and a half ago | (#41333103)

The law is an ass, and I'm looking at you, those who make and enforce laws and judge cases. I am not holding members of the public who sit on juries blameless when they immorally convict someone for breaking an evil and immoral law.

Maldenesque (1)

macraig (621737) | about a year and a half ago | (#41332641)

Is she the illegitimate love child of Karl Malden? That's the most distracting schnozz I've seen on a woman in a while.

Re:Maldenesque (1)

wonkey_monkey (2592601) | about a year and a half ago | (#41333101)

I'm sick of tired of people mocking others for their physical appearance!

Besides, she's clearly the love child of Owen Wilson.

Solution (1)

StripedCow (776465) | about a year and a half ago | (#41332675)

A solution easily presents itself: just link to a google search.

Re:Solution (2)

joostje (126457) | about a year and a half ago | (#41332837)

The whole point of the reasoning of the judge was that the link wasn't in the google index (at least not at the time GeenStijl published it).

Re:Solution (0)

Anonymous Coward | about a year and a half ago | (#41332879)

You could add the sites to the google index quite easily by linking to them from one or more sites.

That's really insane! (3, Insightful)

aglider (2435074) | about a year and a half ago | (#41332677)

Hyperlinks [wikipedia.org] are just references [wikipedia.org] . Just like we have done so far in speeches, in books and articles.
References don't contain the referenced information, they just direct the reader/listener to another "information container".
Back to the web technology, a reference to a file is not the file itself (like the information author+title+publisher is not the book).
A reference to a "pirated" file (whatever the content is) is still a reference, not the "pirated" file.
You could say the reference helped the pirated file to be spread on the net. Yes, indeed it did.
But still that's not infringement. They should ash to remove the reference and that'd be all.

Re:That's really insane! (3, Insightful)

Anonymous Coward | about a year and a half ago | (#41332783)

This is obvious and even the Dutch supreme court recognised this.

The point in this case is that the hyperlink is not to a public site, but to a semi-private site that you can only find with the hyperlink (GeenStijl, who will appeal this ruling [geenstijl.nl] , point out that google does index filefactory [google.nl] ).

This is certainly no general ruling that hyperlinks to infringing content are illegal or constitute infringement in general. The question is whether the hyperlink can be seen as an act of publishing, e.g. opening up to the public something that was not publicly accessible before. Obviously, hyperlinks in general point to material that is already publicly available, so this does not apply.

On the internet, there is no private site. (0)

Anonymous Coward | about a year and a half ago | (#41333009)

Unless you disconnect or restrict access to the site by requiring some shared secret to get in.

The internet is no more private than the public parks and the road system connecting them.

You don't have to ask permission to go off your drive and on to the road, do you? Nor for walking OFF the public road and walking up to someone's door across their "private" path? So why are sites put on the public internet trying to be private? LOCK THE FRIGGING DOOR MORONS.

Re:That's really insane! (1)

fnj (64210) | about a year and a half ago | (#41333305)

Oh for gosh sake. It's not a "semi-private" site, whatever that means. The links in question are to publicly readable files sitting on a publicly accessible server - with URLs that inherently exist but which were not publicly discoverable until the links in question were made. Period, end of story. The front page of File Factory states in huge lettering "The easiest way to upload and share your files in the cloud". It's PUBLIC. For an uploaded file to be publicly discoverable and reachable, all that has to happen is for the uploader, or anyone else who knows the URL of the file, to publish a link to it.

And no, "hyperlinks in general" do not have to point to material that is publicly linked already. A link is a link. How do you think the first link gets made? The first link made is just the first link, nothing more; no different from any other link. What if the link in question should be to an otherwise un-indexed page of links put up by a third party or by an open cooperative, none of which links are legally objectionable when the link in question is made? What if then a third or FOURTH party later changes the block of links to make it legally objectionable? Just who is performing the act of publishing in that case? Hmmm?

Does everyone making a link have to exhaustively research the legalities, not only when he makes it, but continue to scrutinize it forever after to make sure nothing changes to make him liable under some stupid law? This case may stand under this interpretation of the law, but anyone with any imagination whatsoever can visualize cases where the whole legal house of cards falls down.

This interpretation of the law is an assault against the foundation of the WWW. If you examine the subject critically, you are forced to the conclusion that the law is struggling to cope with technology that is allowing anyone to see what a mockery the law is. The law has not yet come to grips with the fact that, for the first time in history, any ordinary individual is enabled to enjoy his own image of a Renoir or Michelangelo at no cost, and any individual can pass the enjoyment on to another individual at no cost to either party. You can't artificially hide data or knowledge, and you can't artificially enforce scarcity, when no physical basis exists for either any more.

Linkgin'2WP = infringement (1)

servitore (911830) | about a year and a half ago | (#41332703)

So linkin2 http://wikipedia.org/ [wikipedia.org] is infringement :-))

Re:Linkgin'2WP = infringement (2)

Erik Hensema (12898) | about a year and a half ago | (#41332787)

No it isn't. Wikipedia was known by the general public before you linked them from your comment. Furthermore, the content on wikipedia isn't infringing.

I've got copies of music available on my private server at home. That server can be reached from the internet. If you'd somehow found out the url of the copied songs, then you'd be publishing (i.e. making them known to the general public) them, which would be infringing. And my personal copies are legal since I'm allowed to make a private copy of music I own.

Apparently... (1)

dutchd00d (823703) | about a year and a half ago | (#41332733)

Apparently, common sense isn't a requirement for a judge in the Netherlands. Here's what should have happened:

Judge: Your client made these files accessible on the world-wide web?

Lawyer: Yes your honor.

Judge: Without any sort of access control, like a login procedure or some such?

Lawyer: Yes your honor.

Judge: And now they're complaining that someone linked to them?

Lawyer: Yes your honor.

Judge: Please inform your client that he is an idiot. Case dismissed. *Bang*!

Re:Apparently... (1)

wonkey_monkey (2592601) | about a year and a half ago | (#41333127)

Given the undiscoverable nature of the data, the URL in this case could be considered to be a password. A normal login procedure is just a correct sequence of bytes, same as a URL to fetch a specific piece of data. Those who know it can get the data (and should be the only ones authorised to do so by the owner), those who don't, can't. Discovering a URL can be just as hard as discovering a username and password.

Re:Apparently... (0)

Anonymous Coward | about a year and a half ago | (#41333277)

p>Judge: Your client made these files accessible on the world-wide web?

Lawyer: Yes your honor.

Actually: no, your honor.

These pictures were planned for the december edition of Playboy, and apparently Sanoma, the publisher, does not like the fact that they are on the web and is trying hard to stop that. GeenStijl kept updating the links in their articles to new locations when Sanoma had Filefactory and Imageshack remove them, and they had been informed this was copyright infringing material. It is typical for their attitude.

In Dutch, when someone fucked you over badly you will typically describe their behaviour as "geen stijl", literally "no style". This website's attitude is that it's fun to be assholes.

To me this is an edge case. On a technical level a hyperlink certainly is not a publication of the linked item, but on the other hand persistently linking and relinking to material that you know to be infringing copyright certainly is behaviour that actively assists in spreading it. To me that comes a bit too close to pushing someone in front of a speeding car and blaming only the driver for the injuries to be quite comfortable with it. But the judge used different arguments. On first sight they don't seem to be unreasonable to me, but I can't oversee what side effects it may have. I'll be interested in what Bits of Freedom [www.bof.nl] will have to say about this.

(Nearly) Every content is copyrighted (0)

cpghost (719344) | about a year and a half ago | (#41332755)

If linking to copyrighted content is prohibited in NL, links to everything not in the public domain would be illegal; including links to content licensed under CC, BSD, GFDL, [L]GPL, etc... This is by all means the whole Internet. Should this ruling be enforced, the Dutch internet is about to disappear in a puff of logic; destroyed by incompetent lawyers and lawmakers. This is amazing, considering that the Netherlands were pioneers, connecting Europe to the (early) Internet. How deep the fall.

Re:(Nearly) Every content is copyrighted (2)

91degrees (207121) | about a year and a half ago | (#41332813)

If linking to copyrighted content is prohibited in NL

It's not though. Wilfully linking to material that infringes copyright can, in certain circumstances, also be considered copyright infringement. Linking to CC or GPL content is legal because they give explicit permission to be shared.

Re:(Nearly) Every content is copyrighted (0)

Anonymous Coward | about a year and a half ago | (#41333159)

Wilfully linking to material that infringes copyright can, in certain circumstances, also be considered copyright infringement.

The problem is, you have no control over what's on the other end of the link you publish. It's just an address.

You can publish a link to a page that contains no copyrighted material, or to a page that contains copyrighted-but-freely-licensed material, and tomorrow the owner could stick infringing material on the page and you are now guilty of infringement as well.

This ruling is stupid. The only way to be in compliance is to never link to anything ever.

Extremely interesting case (4, Insightful)

zmooc (33175) | about a year and a half ago | (#41332775)

I think this is an extremely interesting case. My first reaction was a typical knee-jerk don't touch my free hyperlinking speech! However, this goes further than that.

What has happened here, is that a URL was used that was effectively just as secure as one secured by a username/password. Only difference is that the username/password (or in this case another secret key, which is a mere technicality) were in the URL itself. The reasoning of the judge was that by publishing this secret, Geenstijl has effectively published the material that was protected by the secret. I think that's not that odd a decision. However, it is a very dangerous one.

What this boils down to, is whether the location of credentials should matter. One thing we all agree on, is that username and password passed in HTTP headers should be considered confidential. Using or publishing them without permission is most certainly illegal in most countries. Should a secret key or credentials that are part of or can technically be made part of a URL be treated in the same way? I think they should in obvious cases; for example using or publishing an url like http://slashdot.org/login?user=zmooc&pass=yo [slashdot.org] without my permission would probably be illegal. How obviously secret does an URL have to be for publishing it to be illegal? And who is to decide on that?

That's what this case is about or at least should be about.

Re:Extremely interesting case (1)

swilver (617741) | about a year and a half ago | (#41332803)

Except, Google found it -- it was indexed by Google.

If Google can find it so can others.

Re:Extremely interesting case (0)

Anonymous Coward | about a year and a half ago | (#41332827)

before or after it got 'published'?

Re:Extremely interesting case (3, Informative)

joostje (126457) | about a year and a half ago | (#41332833)

At the time GeenStijl published the link, the link wasn't indexed by Google. That was the whole point of the reasoning of the judge.

Re:Extremely interesting case (0)

Anonymous Coward | about a year and a half ago | (#41332957)

I get that, but the fact remains that theoretically someone could stumble upon it, bot or human. I've trimmed back a couple of directories in the URL path and found all sorts of things that weren't specifically linked on a web page, or put in numbers and letters with the same pattern to find additional files. http://example.com/dir/dir/file32533.zip logically means there might be a "file32534.zip". Is mentioning on a web site "Hey, I just noticed there *is* a file32534.zip" going to be infringing if the material in it happens to be copyrighted? Uploading the file, downloading the file, yes.

Re:Extremely interesting case (1)

zmooc (33175) | about a year and a half ago | (#41332987)

Stumbling upon such a url would be highly unlikely. About just as unlikely as guessing your /. username and password right in one go, which would be illegal.

Looking a node higher in a structure that is known to be hierarchical obviously is not "stumbling upon", nor is looking a node lower in a structure that appears numerically linear (like your zip file naming scheme). It is about just as logical as knowing there's an eight floor in a building once you've established you're on the ninth floor. Its existence is obvious. Those situations cannot reasonably be compared to URLs that have been constructed in a random, hard to guess way on purpose.

Re:Extremely interesting case (0)

Anonymous Coward | about a year and a half ago | (#41333119)

So legality or illegality of something is determined by Google, ie: a multinational corporation was just officially anointed as the guardian of our legal system

Re:Extremely interesting case (1)

AlXtreme (223728) | about a year and a half ago | (#41332843)

Why would publishing a link to another site be illegal? If someone knew your username and password providing a direct login-link would probably violate slashdot's ToS but I can't follow the step to such a link being illegal.

What the judge did was equating publishing a link to a previously unknown copyrighted work with publishing the copyrighted work itself. It would be the same as making it illegal to tell people they can find ABC on the pirate bay if no one knew so before.

It was clear from the ruling and the reaction that this ruling came from a judge who doesn't understand that you can't be responsible for the content when you link to another party. It will be overturned in the appeal, or it will be the end of Google over here.

Re:Extremely interesting case (1)

zmooc (33175) | about a year and a half ago | (#41332971)

Using credentials without permission is illegal. If you knew my username and password or any other secret key that is used to protect a resource, using them would be considered illegal intrusion unless you had my explicit permission. Also, sharing them would be facilitating illegal intrustion. Such information being stored in or combined into a URL does not change the matter.

However, if you couldn't know you were using such credentials, it becomes another matter. And that is what this court case is about or at least should be about: to what extent can Geenstijl be expected to identify the URL they received as being or containing secret information that can be used to access secured resources. This is a very difficult matter and it surprises me Sanoma managed to convince the judge Geenstijl should have known this information was not public. It seems to me that in order to determine that, one should proof that the URL was not communicated to more than a handful of people that all knew it was a private secret AND Geenstijl should have known that as well OR it should be plainly obvious from the URL that it contained secret credentials (which seems impossible to me since I'd consider such an url to be irony or sarcasm). To me this seems pretty much impossible to proof.

I also agree with you that the judge in this case appears not to understand the matter. However, he/else appears to make a interesting point.

It would be the same as making it illegal to tell people they can find ABC on the pirate bay if no one knew so before.

That depends; does Pirate Bay offer an explicit mechanism for hiding information on their website? I doubt it. I don't know the site were Britts naked pictures were posted, but I do know Youtube; it allows me to mark a video "private". It will then never publish the url the video is on. Some people use this for sharing private family videos and the like. Can they expect their videos to be considered "legally private"? I doubt it. However, what is to be determined here and what I'd like to know is were the line between my login-url and a not-so-private youtube url is or should be.

Re:Extremely interesting case (0)

Anonymous Coward | about a year and a half ago | (#41332993)

What this boils down to, is whether the location of credentials should matter [...]

Should a secret key or credentials that are part of [...] a URL be treated in the same way?

I think they should in obvious cases.

I think it should not. That's why: the medium offers a way to express unmistakably I want this to be secret, and that's HTTP Auth. So folks can perfectly know when they're crossing the line. Judges would be wisely adviced to encourage such bright lines when there are some. Enough grey areas around already.

But yes, legal professionals like to bathe in grey areas. Lots of them. They make a living on that.

Re:Extremely interesting case (1)

zmooc (33175) | about a year and a half ago | (#41333063)

I am inclined to agree with you. However, the situation has become somewhat complex; while HTTP does offer a great way to protect specific resources, it is not used in practice. I can't think of any modern website that uses it; practically everybody uses form-based authentication. Therefore, it has become somewhat muddy where the line is and when it is crossed.

So this means that when I encounter a HTTP Auth protected resource, the situation is entirely clear. However, when I encounter a non HTTP Auth protected resource, it is NOT safe to assume it isn't protected through some other means.

Judges will not look at what RFCs say. The will look at the real world, which differs quite a bit from the ideal world described in many specifications. They will say that website visitors cannot be expected to know all RFCs by heart. Also, they cannot be expected to even see the often very clear messages exchanged at the protocol level... too bad, but that's the real world.

Re: (1)

davide marney (231845) | about a year and a half ago | (#41333023)

The scenario is I publish your secret URL on my blog. You then move your files. I then update my blog with the new address. According to the judge, that's an infringement on your copyright.

I really don't see how that can be right. The address of your publication is not the publication, as can be seen by the fact that the address changed, but the content did not. The fact that you consider the address a secret is immaterial from a publishing standpoint, which is what copyright is supposed to be about.

Re:Extremely interesting case (1)

fa2k (881632) | about a year and a half ago | (#41333031)

Technically, it's extremely stupid to rely on URLs to remain secret. On many browers, they are transmitted to a search provider as you type them. I've had Googlebot start hitting my personal web server, and I think it's because I type the URL on my Android phone. (can't be 100 % sure, I posted links to single files on it on IRC and once on slashdot. Would be an interesting experiment.). The URLs are also stored in the history, of course, and the cache files are possibly readable by anone on the system.

URL or hyperlink? (1)

srussia (884021) | about a year and a half ago | (#41332881)

Did the site actually link to the content or merely reported its URL? Would such a distinction have mattered?

So I can't create an index of books and movies? (1)

erroneus (253617) | about a year and a half ago | (#41333053)

If I were to create an index of books and movies and told people where they can BUY them, am I guilty of infringing on copyrights?

Clearly, no. We call this "advertising" and it's big business.

"Contributing to the deliquency of..." is not the same as being a delinquent minor is it? We have similar laws which fill similar needs. Why don't they just push for a law which describes what is actually happening rather than harm the law twisting it out of proportion and purpose?

I think it is beyond reason to argue that links to copyrighted works does not aid in the distribution of such materials. But it goes at least equally beyond reason to argue that providing hyperlinks is the same as infringement.

Define the crime better and we can talk.

how does that work? (4, Insightful)

amoeba1911 (978485) | about a year and a half ago | (#41333091)

COP: Have you seen anyone here selling counterfeit Rolex?
Pedestrian: Yeah I saw a guy holding a suitcase of watches just five minutes ago.
COP: Can you point in his direction?
(Pedestrian points)
COP: You are under arrest for copyright infringement!
...
Judge: GUILTY!

Re:how does that work? (0)

Anonymous Coward | about a year and a half ago | (#41333321)

"Hey! There's a gun over in that hay pile." Am I now guilty of murder if you use it? All I did was tell you where to find a gun.

Re:how does that work? (1)

Anonymous Coward | about a year and a half ago | (#41333325)

Be honest now, Its more like the pedestrian is standing on a crate and holding a sign advertising the guy thats selling the watches...

Directionrights = Copyrights (1)

Zamphatta (1760346) | about a year and a half ago | (#41333173)

Yeah, 'cause, you know... pointing to where something is, is the same thing as making a copy of it. Don't you all know that by now? This is why, when someone asks you where the nearest McDonald's is, and you tell them to take a left at the 3rd light, you're making a copy of McDonald's without their permission.

One Word Summs It All (0)

Anonymous Coward | about a year and a half ago | (#41333195)

"Stupid"

So how is a "link" different from any reference in a book, a scientific article or a news article. The fact that the technology makes reaching the reference (linked stuff) easier should not be the issue.

The website in question can disable the users account and send him a letter of warning. The fact that the website allowed this linking with user name and pwd in the url is the company's fault.

The Dutch judge seems to be a dimwit; I hope the rest of the Dutchians(!) are within normal limits. I wonder how they would rule on a "Fair Use" issue!

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