Knowledge: The "Missing" Link in Linking Liability

When does a hyperlink violate copyright law? Traditionally, the answer to that question has been a murky one. But a few recent court decisions suggest that judges in several countries may be gradually moving toward a consensus: a hyperlink violates copyright law when the linker knows that the linked-to site contains copyright-infringing content. Most recently, a German appeals court found that a hyperlink on an online news site violated German copyright law because it sent users to the homepage of a software vendor whose product -- as the news service was aware -- could be used to circumvent copyright-protection mechanisms on DVDs. (BMG Records GmbH v. Heise Zeitschriften Verlag (July 28, 2005).) Upholding a lower court’s decision, the Intermediate Court of Appeals of Munich ruled that the hyperlink made Heise Online liable as "an aide and abettor" of “unlawful acts.” But the court refused to find Heise liable for merely reporting about the software in question, as the German music industry had wanted. But that's not all. If the recent European Commission proposal (see item above) to criminalize contributory copyright infringement is adopted, hyperlinkers like Heise Online might one day be prosecuted for a criminal offense.