Continuing the Linking Liability discussion I recently contacted Dr. Stephan Ott for his views on the liability of linking to infringing content. Stephan is from Germany and runs the site Links and Law and has a number of publications relating to the subject. Stephan is considered an expert on linking laws.
Here is what he had to say:
“In my opinion linking to infringing content is unlawful and that is also what most of the courts say. In the USA there have been several lawsuits about linking, but so far there has been no decision on the liability of a link provider for linking to copyright protected videos or music files (see this pending lawsuit). In Germany there have been lots of lawsuits on this matter and there is no doubt that you are liable if you link to illegal content, at least if you know that the content is illegal. I’m by far no expert in the legal system of the UK, but it is probably not so much different in this area.
So to answer your first question, I wouldn’t say the website is illegal but the links are. The same applies to a blog that occassionally links to infringing content.
In the USA there are Safe Harbour provisions for hyperlink providers. You receive a take down notice and you comply with it, than there is no liability. So far we have nothing that is comparible to that system in Europe. I think we need a similiar system and there are discussions on the European level. I took part in a discussion in September in Brussels. Maybe there will be new rules in 2007, but probably it will take more time.
But you are right, there are still many grey areas, e.g. are you liable for illegal content that was not on the linked-to-site when you created the link? Do you have to check for illegal content on all the sites that you are linking to (probably not, but one court in Germany ruled otherwise several years ago)?
So to conclude, if you know that a video is pirated and you link to it, it is very likely that courts will see the link as unlawful.”
Linking is a given right on the internet and ‘linkers’ should not be made liable except in extreme circumstances. According to ChillingScreen –a website that is run by the Electronic Frontier Foundation and documents takedown notices– linking is protected by the first ammednment.