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March 8, 2005
Back to that theory about illegal links...
Posted by Alan Wexelblat
Remember last month I mentioned that merely linking to something illegal could itself be illegal? The law of the land is uncertain in the US and now it appears it will be tested in Germany.
Word out of Munich is that a German judge has sided with the Cartel in blocking heise.de, a popular German-language news site from linking to a site discussed in one of heise's stories. As you might guess, the story was on the ease and popularity of distributing content the Cartel would rather lock up. There was, apparently, a link to a site that was, allegedly, involved in such distribution.
If you're wondering why I'm hedging my language so much it's because the original story is in German, a language I'm not fluent in. I'm relying on blog reporting here on toytownmunich.com and here on Constitutionalcode blog.
If someone who is fluent could post an English version of the story that'd be great. Babelfish produces such gems as "Who passes the readers on on its InterNet side by a in such a way specified left to homepage the company with illegal software offers, can be sued for aid." Erm, yeah.
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1. James on March 8, 2005 3:02 PM writes...
"If someone who is fluent could post an English version of the story that'd be great."
You may not realize it, but you've just asked people to commit an act of copyright infringement. A copyright owner has the exclusive right to prepare derivative works, see 17 USC sec 106(2), and "translations" are derivative works, see 17 USC sec 101.
Of course, posting a translation of a short excerpt, as opposed to the entire article, would in all likelihood constitues fair use under 17 USC sec 107.
(I'm assuming here that US, not German, copyright law applies. I express no opinion on the choice of law issue, or what the substantive answer under German law would be.)
Permalink to Comment2. Branko Collin on March 8, 2005 8:04 PM writes...
The Netherlands had a ruling a couple of years ago in one of the early Church of Scientology vs. Karin Spaink cases, in which the judge "held for law" that linking to infringing websites was a form of infringement itself.
This was overturned on appeal, but interestingly enough, in the meantime a couple of cases were decided using the early ruling, most notably Deutsche Bahn vs. Indymedia.
Since then, the Dutch branch of RIAA and MPAA, BREIN, has lost a pre-emptive case that the MP3 search engine ZoekMP3 had initiated against them. If I remember correctly (too lazy to look it up), the judge in that case referenced the CoS v. Spaink appeal.
Permalink to Comment3. Alexander Wehr on March 8, 2005 11:18 PM writes...
I wanted to ask the obvious..
Why are these content cartels so mad that theyve been pointed directly to a source which they can sue offline?
I'd think they'd be happy that someone so clearly ratted a site out to them... instead they condemn people for reporting infringement to them! absolutely amazing that they'd be bone headed enough to sue people for showing them where to point their now massive legal guns.
Not that i approve of their conduct, or believe it harms them.. but still it seems really stupid to me putting myself in their shoes.
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