Linking to Playboy piracy isn't infringement, says EU advisor

Linked to pirated content online cannot be seen as copyright infringement, the EU advocate general has advised.

Melchior Wathelet, a top legal advisor within the EU Court of Justice, has said that posting hyperlinks to copyrighted content hosted by a third party cannot in itself constitute an infringement.

The decision comes after an ongoing legal battle betweLinking to pen Dutch website GeenStijl.nl and the publisher of Playboy.

The site linked to a series of leaked photos, hosted on file-sharing service FileFactory, but when Playboy publisher Sanoma had the pictures removed from FileFactory, GeenStijl simply linked to another source.

The EU Court of Justice now has to rule on whether or not these hyperlinks are a "communication to the public" and therefore an infringement of copyright.

In his advisory, advocate general Wathelet said that "the posting of the hyperlinks in the main proceedings does not, in my view, constitute a 'communication to the public'".

He also added that any other interpretation "would significantly impair the functioning of the Internet and undermine one of the main objectives of Directive 2001/29, namely the development of the information society in Europe."

Wathelet's decision is not legally binding, and the court will still have to reach its own consensus on the case. However, the advocate general's advice often informs the court's decisions in these matters.

The case is a landmark one, and could "distort the fair balance of rights and interests between the different categories of rightholders", according to Wathelet. "In my view," he said, "such interference in the functioning of the internet must be avoided."